CORRUPTION AND ILLEGALITY IN ASIAN INVESTMENT ARBITRATION

This book explores the interface of two important fields of law and policy: norms against bribery and other similarly serious illegal behaviour, and international investment law and arbitration. A primary concern is: What do or should arbitral tribunals do when foreign investors bring claims for violations of substantive commitments like non-discrimination made by host states under international investment treaties or free trade agreements, but the state raises a defence that its officials were bribed when the investment was originally made? Should the tribunal simply decline jurisdiction, so no claims at all can be protected and dealt with under the treaty by tribunals, possibly then incentivising host states by deliberately asking for bribes as evidence and keeping them as a ‘get out of jail free card’ if foreign investors ever try to file arbitration claims to enforce treaty rights? Or are only some claims inadmissible? Or does the corruption or illegality only impact on the merits of the claim, or on damages awarded or on allocations of costs associated with the treaty? How have Asian parties and stakeholders dealt with such questions and what should they do in future, in dealing with such disputes or (re)drafting investment agreements? 

One particularly interesting question for me, having written some years ago (with one of the co-editors) on potential models for Asia–Pacific investment dispute resolution, is whether the socio-economic and political diversity across the Asian region can be channelled into more harmonised approaches to dealing with such issues.

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