What Is it to Be ‟Pro-Arbitrationˮ When Addressing Corruption at the Setting Aside and Enforcement Stages? - Chapter 57 - Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years
In the last 25 years, an international consensus has emerged condemning corruption (defined for the purposes of this essay as encompassing bribery, money laundering and influence peddling) as a legally and morally repugnant practice that maintains poverty, stalls development, rewards unsavory conduct, and distorts fair and free competition. The plentiful literature on corruption is a testament not only to the unfortunate reality that corruption occurs all too often but that it is an issue to be tackled. Arbitral tribunals are no strangers to this scourge, which they frequently face both in commercial and investment disputes.
Corruption brings to the fore two competing “pro-arbitration” values: respecting the finality of arbitral awards, on the one hand, and policing a public policy concern, namely the fight against corruption, on the other. In Professor Bermann’s words, to which extent does favoring one relative to the other “serve and disserve arbitration’s interests”? (George A. Bermann, What Does it Mean to Be “Pro-Arbitration”?, 34 Arb. Int’l 341, 2018, p. 348).
The tension between these values is highlighted in Article V.2(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NY Convention) and Article 36(b)(ii) of the UNCITRAL Model Law whereby a court may—not must—set aside or refuse enforcement of an arbitral award if a party establishes that recognition would be contrary to public policy.