Dealing with Corruption in International Arbitration: The Interactions of Conflicts of Interest and Corruption
The Hon. L. Yves Fortier, QC & Laurence Marquis
ABSTRACT
Judge Lagergren, in 1963, famously wrote that "corruption is an international evil." While this recognition was a welcome acknowledgement of the existence of corruption in international arbitration, we assess in this article whether or not his edict has been followed and implemented. The issues of corruption and conflicts of interest, the theme of this special issue, interact often. Conflicts of interest can be a gateway to corruption and will, sometimes, be a "red flag."
The complexity of issues associated with corruption for an international arbitrator must not be underestimated. We recognize, initially, the more salient efforts in the global fight against corruption, existing enforcement obstacles, and their interaction with international arbitration. We then review the complex undertaking of finding an adequate definition of corruption. We then consider when conflicts of interest become markers of corruption. We also examine issues international arbitrators and parties are confronted with when suspicions of corruption surface in an arbitration, including the standard of proof and the stage at which such issues should be addressed by the Tribunal. Finally, we look at the recent proposal to create an International Anti-Corruption Court. This article, in conclusion, is as much a positive assessment of the work undertaken recently as well as a call for immediate action by arbitrators and counsel to detect and deal with corruption in international arbitration.