Investment Treaty Arbitration: The Corruption Defense
|Thu. September 12, 2019
5:30 pm - 8:00 pm
!Bank of Ireland Innovation Lab
Join us for a discussion about 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.
This relatively new defense raises many challenging issues that will be discussed, including:
● Emerging case law
● The factual patterns being presented to arbitrators
● The juncture at which a corruption defense is raised
● The applicable standard of proof
● The applicable law
● Evidence of corruption, and how it is marshalled and presented
● Pre-filing strategies, diligence and internal controls
● The significance of domestic court findings on corruption
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.
● Basil Imburgia, Senior Managing Director, FTI CONSULTING
● Henry Weisburg, Partner, SHEARMAN STERLING LLP
● Robert Baker, Senior Managing Director, FTI CONSULTING [Moderator]
● Bouke Boersma, Senior Associate, HOUTHOFF
● Lucinda A. Low, Partner, STEPTOE & JOHNSON LLP
● Brian Burke, Partner, SHEARMAN STERLING LLP
5:30 PM - 6:00 PM - Check in/Networking
6:00 PM - 7:30 PM - Program
7:30 PM - 8:00 PM - Networking
EACCNY Member: Free
Non- EACCNY Member: Free