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Allegations of Corruption in the Underlying Claim: The Evidentiary Challenges - WAMR 2015 Vol. 9, No. 3
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19688
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Originally from World Arbitration and Mediation Review (WAMR)
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This session focuses on the issues tribunals confront when allegations of corruption in the underlying claim are made, typically although not always by respondents in either investor- State or commercial claims. Should the standard of proof be any different with respect to such allegations? Are there situations that justify inverting of the burden of proof? Because not every case has the type of clear evidence that was available in the World Duty Free case, how should tribunals and counsel approach these fact-intensive issues? What is the relationship of arbitral proceedings to national proceedings?
MS. LOW: You have heard from Nicola Bonucci in the last panel about what amounts to an offense of transnational bribery under the Organisation for Economic Cooperation and Development (OECD) Convention, and that leads us to this next panel.
Questions of bribery and corruption are very factual in nature.
Of course, the conduct has to be measured against a legal standard. While the legal standards for this type of conduct have converged significantly in recent years, they are not identical but there are many similarities. If you look horizontally across antibribery statutes, you may find that giving something of value to a public official is generally forbidden, and some laws apply the prohibition against such conduct to any type of recipient, public or private.
In addition, as Nicola Bonucci said, there is almost always an element of intent in this legislation, intent to secure an undue advantage or benefit through some form of value that is given. The advantage can be a contract, a license, a permit, other executive actions such as regulatory benefits, judicial action, or legislative action.
This implies a deep factual inquiry into the conduct to determine what occurred and why. One of the key features in this area is that it shifts; sometimes business relationships or activities that, in one set of circumstances, can have a legitimate purpose, may, in another set of circumstances, also cross the line into having an illegitimate purpose.
STANIMIR A. ALEXANDROV is partner at Sidley Austin LLP in Washington DC and co-chair of the firm’s International Arbitration practice. Mr. Alexandrov focuses his practice in the areas of investor-state arbitration, as well as international commercial arbitration and resolution of trade disputes before the WTO. He has represented private parties and governments in arbitration before ICSID, as well as in ICC, UNCITRAL, and AAA arbitrations. Mr. Alexandrov has been appointed to the ICSID’s Panel of Arbitrators and serves as an arbitrator in ICSID, ICC, LCIA, and UNCITRAL cases. He has appeared as an expert witness in international arbitration on investment treaty interpretation. Mr. Alexandrov has been teaching for over 15 years at the George Washington University Law School and has published several books and numerous articles. He obtained his degree in public international law from the Moscow Institute of International Relations,and a Master’s and Doctoral degrees in international law from The George Washington University Law School. Prior to engaging in private practice, Mr. Alexandrov was vice minister of foreign affairs of Bulgaria. He is fluent in several languages.
LUCINDA A. LOW is a partner of Steptoe & Johnson LLP, residing in the Washington, D.C. office. She heads the firm’s Regulatory Enforcement and Public Policy Department, where she is a member of the International Trade and Investment, International Regulation and Compliance, and Government Investigations and Enforcement practice groups, and serves on the firm’s Management Committee. Her practice focuses on issues arising from the interaction of multinational businesses and foreign governments, particularly in the context of direct investment, including FCPA/anti-corruption, business and human rights, economic sanctions, and trade and investment disputes. She has served as counsel to claimants and respondents in investor-state claims, as an arbitrator in both commercial and investor-state proceedings, and as an expert witness in international commercial arbitration where issues of bribery and corrupt practices have been involved. Ms. Low is ranked in Band 1, Chambers Global 2010-2015, International Trade: FCPA Experts (US) and in, Chambers USA 2010-2014, International Trade: FCPA Experts (Nationwide). She is also listed in Best Lawyers in America 2012-2015, International Arbitration: Governmental and International Trade and Finance Law and in Washington, DC Super Lawyers, International, 2014. Among other recognition, she has been named an Attorney Who Matters and a “Top Gun”) by Ethisphere and was the first woman inducted into its Hall of Fame in 2012. Ms. Low is a member of the US Secretary of State’s Advisory Committee on International Law and the Board of Directors of Transparency International - US. She is a former Chair of the ABA Section of International Law as well as a Vice President and member of the Executive Committee of the ASIL, and has been nominated to the ASIL Presidency for 2016-2017. Ms. Low is a graduate of Pomona College and UCLA Law School, where she served as Editor-in-Chief of the UCLA Law Review. She has lived in Brazil and speaks Portuguese, Spanish French and some Italian in addition to her native English, and has some knowledge of Russian and Japanese. Ms. Low speaks and writes frequently on matters involving international law and regulation.
ANDREA J. MENAKER is a partner in White & Case’s International Arbitration Group in the firm’s Washington, D.C. office, where she specializes in investor-State arbitration and represents both sovereign States and claimants. Before joining White & Case, Ms. Menaker was Chief of the NAFTA Arbitration Division for the US State Department where she was lead counsel for the US in investor-State arbitrations arising under the investment chapter of the NAFTA, represented the US in NAFTA investor-State arbitrations against Canada and Mexico, and participated in the drafting of investment and dispute resolution provisions in US bilateral investment treaties and investment chapters of free trade agreements. For several years, Ms. Menaker served as an adjunct professor at Georgetown University Law Center where she taught international commercial arbitration. She is a frequent speaker and publisher on international arbitration topics, and is a member of ASIL’s Executive Council, a member of the Board of Directors of the Arbitration Institute of the SCC, an Adviser on ALI’s Restatement Third, Conflict of Laws, an advisory board member for the International Law Institute, a consultative forum member for the British Institute of International & Comparative Law, and a member of the Investment Experts Group for UNCTAD. Ms. Menaker is listed in Global Arbitration Reviews “45 Under 45,” Chambers Global, the Who’s Who of Commercial Arbitration, Benchmark Litigation, The Best Lawyers in America, and Expert Guides.
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