Upcoming Event


Investment Treaty Arbitration: The Corruption Defense


Thu. September 12, 2019
08:00 am - 10:30 am

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Join us for a discussion regarding how in recent years, corruption allegations have arisen more frequently in international arbitration. In this context, states or state-owned entities have increasingly asserted corruption allegations as a defense to claims brought against them.

While there is no question that corruption is antithetical to the international rule of law, the “corruption defense” in international investment law presents a number of difficulties that international investors and practitioners should keep in mind when considering their rights under international investment treaties and similar instruments.


Topics to Be Discussed:
Arbitral tribunals faced with corruption allegations must determine several issues that may significantly affect the outcome of the arbitration.
(i) where corruption fits in the context of an arbitral proceeding,
(ii) the applicable standard of proof,
(iii) whether domestic court findings on corruption are relevant to the proceedings, and
(iv) the legal consequences that may result from corruption allegations.

Recent Case Law:
● World Duty Free v. Kenya (2006)
● Metal-Tech (2013) and Spentex (2016)

Potential for Abuse:
● The corruption defense’s all-or nothing approach may tempt states to level tactical accusations of corruption on very thin evidence
-Customs and Tax Consultancy case (2016), the Democratic Republic of Congo
-Karkey case (2017), in which a Pakistani accused a Turkish investor of corruption because the investor hired a politically connected representative.
● Claimants in an ongoing $5 billion ICSID arbitration between BSG Resources and Guinea allege the Guinean government revoked their mining rights under the pretext of corruption in order to award the mining rights to political allies of Guinea’s current president.

How Is Corruption Proven:
The rules of arbitral procedure are typically silent on the applicable standard of proof. Some tribunals have applied a ‘clear and convincing evidence' standard when assessing corruption allegations. In doing so, tribunals have justified the heightened evidentiary standard by pointing to the severe consequences of corruption on the investor's claims.

SPEAKERS:
● Basil Imburgia, Senior Managing Director, FTI CONSULTING
● Henry Weisburg, Partner, SHERMAN STERLING
● Robert Baker, Senior Managing Director, FTI CONSULTING [Moderator]
● Bouke Boersma, Senior Associate, HOUTHOFF
Others to be announced

TIME:
8:00 AM - 8:30 AM - Check in/Networking
8:30 AM - 10:00 AM - Program
10:00 AM - 10:30 AM - Networking

FEES:
EACCNY Member: Free
Non- EACCNY Member: Free

Location:
TBD
TBD
New York


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