Table of Contents
Introduction
Arbitration can be regarded as a kind of alternative dispute resolution (ADR). It is basically a mechanism for dispute resolution through out-of-court settlement. Arbitration can also be classified as dispute submission to a non-judicial and neutral third party, so as to arrive at a particular decision. There are certain differences between court proceedings and arbitration. It can be claimed that arbitration does not follow a formal structure, unlike court proceedings. However, there needs to be an arbitration clause embedded within the legal contract. The arbitration agreement is usually structured, prior to occurrence of any kind of disputes. Corrupt practices usually range from bribes to win procurement contract or taxes, to minimal amount paid for exhibiting frequent transactions. Agency contracts can be classified as a typical form of commercial agreement. It is evident that such commercial agreements form the basis of corruption. The dispute mainly emerges when the commission is not paid by claiming that the agreement stands invalid or illegal, or the desirable services were not delivered. There are particular scenarios under which corruption shall become an area of concern within arbitral proceedings. The first scenario depicts tribunal becoming knowledgeable about presence of ‘red flags’ or areas of corruption. Hence, necessary steps might be undertaken by tribunals so as to prevent circumstances where arbitral awards are challenged. Secondly, the scenario where the corruption issue is proclaimed by a single party for preventing contract enforcement.
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In case of pre-Islamic arbitration there are several features which can be witnessed. There is complete freedom in regards to choice of arbitrator. On the other hand, the arbitrator also possesses freedom to prefer one of the following aspects. He or she can decide whether the arbitration will be refused or accepted. Moreover, arbitral awards were hardly legally binding. There should be parties who will undertake arbitration process forward for dispute settlement. Parties’ attendance is also important. Most of the arbitrators remain interests in rudimentary proof related rules. Two main elements are necessary in this case. Arbitrators are dispute solvers while consent is the prime source of task pertaining to arbitrators. Arbitration can be witnessed in several levels such as investment or commercial, international or domestic and institutional or Adhoc. Some of the advantages of arbitration are enforceability, neutrality, confidentiality, flexibility and greater power. On the contrary, several perceived disadvantages of arbitration are noticeable. The disadvantages include conflicting awards, cost, delay, and limitation of power, multiparty arbitrations, judicialization and third parties’ sparing involvement.
Research question
In this research paper, the main research question to be addressed is – “what are the ways through which arbitrators can efficiently tackle corruption issues?” There are some sub-questions also to be considered, such as –
- What role is played by arbitrators to combat corruption?
- How is arbitration process affected or influenced through anti-corruption investigations?
Identification & formulation of research problem
Several people may actually remain involved in international arbitration process. However, there is a problem related to corruption in arbitration procedures where foreign officials are involved largely. Therefore, it should be analyzed how arbitrators are taking initiative to resolve the problems that are cropping during the entire process of arbitration. Tackling the bribery issues is difficult for them because the public officials in most cases hold powerful positions. Therefore, it is necessary for them to handle the problems sensibly or judiciously.
Research Objectives
The research objectives of this paper are as follows:
- To dissect the degree until which the arbitrators can influence tackling of corruptions positively or negatively in the international arena
- To understand how arbitrators can actually eradicate corruption and lead to peaceful and satisfactory arbitration procedure
- To indentify how much a client’s desire for combating corruption in the arbitration process can be taken into account by a arbitrator in international dispute settlement
- To analyze the gaps which prevail within the literature of arbitration and corruption
- To evaluate the overall impact of anti-corruption investigations on the arbitration process
A detailed study will be conducted so as to address the above mentioned research objectives. All of the mentioned research objectives are centered towards the role of arbitrators in handling corruption issues.
Motivation of Research
The importance of this research paper lies in context of determining the outreach of arbitrators. Scholars have highlighted the significance of arbitration process, as a powerful ADR method. However, it shall be interesting to discover the effectiveness of arbitrators when it comes to combating corruption. The primary motivation for conducting the research work is nothing but to determine primary role that the arbitrators play in eradication of corruption from the process of arbitration. However, it is crucial to understand that in several other papers it has been portrayed how in arbitration process corruption is possible to get identified. It is hardly written anywhere how the arbitrators can take active participation in elimination of corruption. The question still remains whether they are potent enough to eliminate corruption from arbitration cycle or not.
Review of Literature
According to Choi et al. (2014), arbitration can be referred to as a favored global trend for dispute resolution. There is high prevalence of various circumstances where the justice system had been affected by corruption related issues. Arguably, arbitration’s competence and fairness in relation to corruption is definitely an area of concern. Numerous arbitral awards have been found to reject distinct allegations of corruption due to lack of convincing and proper evidence. As per Ghaffari and Walters (2014), an arbitration process executed in reference to the UNCITRAL rules clearly stated that any kind of invalid or illegal claims should be made by the Arbitral Tribunal through taking into account convincing and clear proof. Arbitrators oppose the process where attempts are being made to efficiently undertake the arbitral procedure for laying emphasis on corrupted contracts. Such accusations need to be firstly proven.
Arbitral solution can actually have several shapes depending on the arbitrators’ decision. In international cases where trade is involved chances of corruption is extremely more. As a result, the arbitrators’ decision will be completely dependent upon the scenario that may occur. On the other hand, arbitral solution can actually be greatly influenced by the subjectivity of the arbitrators. The attitude of arbitrators is crucial. For instance, the arbitrator may be both indifferent by nature or possess repressive attitude all together. Two differing concepts rule distinct corruption dealing tendencies; the tendencies are already mentioned in the above section such as indifferent and repressive tendencies.
In case of repressive tendency it can be witnessed that the objective moral values can be achieved or manifested merely via human reasoning. It also addresses two main elements such as human choices and conducts. There are times when the legal embodiment remain absent in case of moral rules. The arbitrator has the complete authority that he or she will nullify the cases that are not aligned with the moral ideals as stated by Bermann (2012). On the contrary, it is possible in many folds that the parties may believe otherwise. Moral ideals are not mandatory to remain under some or the other acts or laws. The arbitrator can definitely incorporate his or her own decision making power; there is also suspicion that the case is related to corruption intricately.
The studies have been conducted on much larger scale and thus no such country specific aspects can be witnessed in research implications deciphered above. On the contrary, country based researches and how arbitrators of varying location around the world respond to these types of situations must be analyzed at the earliest for further improvement of legal system in the international platform.
Limited quantitative research has been conducted to derive appropriate conclusions. Majority of scholarly claims are based on certain legal case laws. The main gap prevails in relation to addressing whether arbitrators are truly capable enough to handle corruption issues. Scholars have explored the norms to be followed while claiming corruption issues by arbitrators, but fail to state the role played by arbitrators.
Qualitative research has been conducted by previous scholars through analyzing data from various sources. For instance, some of the common sources include magazines, news articles, scholarly papers and legal database. Government websites have been accessed by researchers to collect some relevant information related to the impact of corruption in arbitration process.
On the contrary, the topic is more inclined towards such genre where it can be visibly seen that perception and participation of arbitrators around the world play main role in resolving corruption related issues.
Data adequacy is relatively high in the selected journal articles because information has been gathered from genuine government websites. The mentioned conclusions have been drawn based on the state published articles.
The data was not available in enough quantity while hunting for the secondary data. As a result, it is important to understand that various other researches should be conducted in order to dissect the topic. It took a hefty amount of time to search for the appropriate topics.
One of the main central arguments is proper evidence is required for addressing allegations on corruption within the arbitral process. Arbitrators are not inclined towards examining any such allegations which are not accompanied with proof.
It can be deduced how an arbitrator can actually decide himself or herself whether participation in elimination process of corruption is feasible or not. On the contrary, it is also possible to identify how indifference and repressive tendency may actually contaminate the decision taken for the parties. Alternatively, the parties will have to provide at least some amount of evidence that they have not made any manipulation while formulating deeds.
The arguments indicate that arbitrators have a role to play in handling corruption related issues, however, under certain circumstances. In certain scenarios, arbitrator’s role is made confined to only settling disputes in reference to the parties’ agreement. The role played by arbitrators in tacking corruption issues is somewhere inter-linked with availability of evidence. A clear proof is required, prior to indulging into making an agency agreement invalid.
The two main aspects addressed in literature section are validation of the moral aspects in arbitration process and consideration of arbitrator in case of violation related to moral issues. Parties can definitely at times think that releasing from any case is easier when they indulge in corruption. The same is extremely evident in international platform.
In light of earlier studies, it can be stated that there is lack of research conducted on the specific roles of arbitrators in context of managing corruption issues. Majority of the previous findings are centered towards the factors which hold importance while dealing with corruption in arbitration. Therefore, in this research paper, main emphasis shall be on whether arbitrators do have a distinct role to play when it comes to combating corruption.
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A huge gap can be witnessed in case of research conducted on arbitration process and its intricate link with the corruption. It is also visible that the arbitrators’ participatory role is not that clear in previous studies. Therefore, a more appropriate approach is required for conducting research on the same topic. The study is thus conducted in order to analyze how an arbitrator can actually eliminate effectively the corruption from the entire system of arbitration so that none of the parties can get undue advantage.
Research Design
The research study will not be based on simply representing some facts. In previous studies, emphasis has been placed on collection of information, analyzing human behavioral pattern and then deriving conclusion. However, this study shall be a form of analytical research. On the basis of analytical research, individuals can use available information or facts to exhibit critical evaluation. The framed problem statement clearly denotes that it is necessary to understand whether arbitrators do really have a role to play in managing corruption issues. Hence, critical evaluation is a primary factor in order to address the formulated problem.
In case of analytical research it is further witnessed that the data collected have to be compiled in order to extract information required for critically portraying and judging the subject itself. However, compilation is not only limited to information facts rather other aspects such as research articles and case laws are compiled and evaluate thereafter. The collected data actually helps to think critically on the subject. As a result, the legal researcher may also thus require critical thinking skills. At times, the researchers initiate analytical researches in order to generate various new ideas while others are more interested in finding supporting evidences so as to make the research work a lot more reliable. The complex phenomena existing in legal landscape can be decoded easily via analytical researches compared to its counterparts. Legal researches are definitely more subjective in nature. Whether it is verdict of the court or in arbitration process most of the times importance is provided to the relevance and context of the situation that arises in due course of time.
Collection of Data
In general context, there are two forms of data collection procedures i.e. primary and secondary. The choice of research topic helps in determining which kind of data collection procedure would be most appropriate. In this research paper, primary data collection procedure would definitely be a time consuming endeavor. On the other hand, it needs to be assumed that legal professionals or arbitrators would be supportive enough to answer the research questions. Therefore, secondary data sources shall be accessed to gain relevant insights. In overall context, the main secondary sources would comprise of magazines, newspapers and scholarly articles.
The research questions are extremely subjective in nature and that is why secondary method of data collection has been selected. It is also important to understand how secondary data may remain invalid as time is a big factor in this case. For example, collected data can be too old or obsolete and thus some concepts become invalid in due course of time. On the other hand, legal researchers’ own knowledge may contradict with the scholars’ viewpoint.
Analysis of data
The major point of conflict is in context of arbitrator’s role in combating corruption. In general context, arbitrators are responsible for dispute resolution between two parties. It can be stated that some arbitration agreement is formed based on bribery or violation of duties or good morals. The role of arbitrator might vary in such cases. For instance, arbitrator might decide on forwarding a case underpinning corruption to the high court of appeal, or can even negotiate claims made by one of the parties. Some researchers have clearly stated that arbitrators do possess legal rights to engage into self-directed corruption investigation. At times, corruption issue might be closely knitted with validity of the agreed arbitration clause. To safeguard the arbitration agreement, a legal conclusion needs to be reached when it comes to allegations on corruption. The role of arbitrators can be best determined in the case TSA Spectrum vs. Argentina. As per the given case law, there are some situations where arbitrators are witnessed to be indifferent towards corruption allegations. In the TSA case, the arbitrator was knowledgeable about the fact that criminal offences were investigated in Argentina, but it had not been resolved. Hence, the tribunal stated that the matter would not be carried forth because sufficient material was not presented. The role of arbitrators in context of handling corruption is associated with their willingness. An arbitrator needs to decide whether one is prepared to conduct thorough investigation in case of a suspected corruption issue. From a broader perspective, arbitral awards or arbitral proceedings stand void if such allegations are not properly managed. In earlier years, corruption was an important aspect to be considered within the international arbitration process. However, with changing time, arbitrators have become more reluctant towards combating corruption.
Across the globe, arbitration process has been largely influenced by corruption issues. At certain instances, parties can even claim that arbitration proceedings form the basis of corruption allegations, leading to convincing national courts to setting aside arbitral awards. On the other hand, arbitral tribunals can even be convinced through claiming that contracts were structured based on some illegal grounds. During the arbitration proceedings, anti-corruption investigations have encouraged parties to negatively influence possible outcomes. The arbitrator does not possess any such exceptional power to compel others for submitting evidence of corruption. Hence, at the end, is all about drawing a negative inference due to lack of evidence. The arbitration proceedings can also be stagnated during anti-corruption investigations. For instance, behaviors which are considered to be illegal in some countries might not be viewed in similar fashion under other national laws. Corruption allegations are even considered as an opportunity by many parties. The arbitration decisions have been influenced by wide range of local anti-corruption laws. It is observed that in case of investor-state arbitrations, corruption allegations are regarded as a defensive mechanism. World Duty Free Company Limited vs. Kenya is a typical case example which reflects the influence of anti-corruption investigation on the arbitration process. In this case, the arbitration tribunal had to finally agree with claims made by Kenya. It was specified that arbitration proceedings are invalid, since it was based on bribery. Arbitral awards can also be prevented from enforcement, if corruption allegations are imposed upon parties. In Dubai Court, there are various such proceedings which had been stated to be void, with the emergence of corruption allegations. Cassation Judgment number 180, in the year 2011, was conducted in the Dubai Court. The case was mainly about a dispute which had aroused due to selling of a unit. The defendant had forwarded a request of cancelling the arbitration and reversing the payment because the contract details were not uploaded to the interim property register. In the Civil Procedure Law, Article 203 (4) denotes that arbitration cannot be applied in areas which are subjected to conciliation. Hence, the anti-corruption investigation in this case resulted into completely disrupting the arbitration procedure.
The article 208 CPC outlines the necessary duties or responsibilities of arbitrators. Apart from dispute resolution, it can be stated that arbitrators are also responsible for keeping a track on fairness of the justice system. In case of dispute settlement or corruption, it is essential for arbitrators to allocate sufficient time for submitting arguments and documents. As per the International Arbitration Act 1974, it is evident that parties involved in arbitration process can forward the proceedings to the Supreme Court. During the anti-corruption investigation in UAE Aircraft Support Industries Pty Ltd vs. William Hare, the Supreme Court had eradicated the award policy resulting into denial of natural justice towards Aircraft Support. The corruption instance was strongly linked with the denial of justice. The Aircraft Support took the advantage of the corruption issue and claimed that award enforcement was highly contradictory to public policy. Hence, arbitration proceedings can be stopped in mid-way if the claims are forwarded to the superior authority. Thus, it is relevant that arbitration process is adversely affected by anti-corruption investigation. Arbitration process was withheld in the above stated case, because it was reported that arbitral awards were bribed. In such instances, lack of proper evidence ultimately leads to denial of the arbitral justice. With the active involvement of domestic authorities, corruption allegations have become much stronger. For security purpose, arbitrator’s role needs to be appropriately defined and included within the legislation.
In most of the cases of commercial arbitration allegations related to corruption are prevalent largely. The arbitration process may actually become void because the arbitrators can at times let themselves participate in various corruption elimination processes. During international arbitration prices several types of corruptions can be witnesses. In fact, private and public bribery are not only merely present in the process of international trade. Several others also exist. For example, someone can exert influence on others for winning the case by bribing the public officials and bodies. Both giving bribes and taking the same are not morally acceptable in the eyes of law during arbitration process. Even though it is less likely yet it is possible that the arbitrators themselves get engaged in bribery. Later they give verdict on the basis of involvement and benefits they extract from the arbitration process. On the contrary, bribery may not be in the form of money rather it can be acceptance of forged documents, false testimony and also unlawful surveillance pertaining to parties. In proceedings even though illegality is not a major concern yet a single party involved in the activities pertaining to illegality could also trigger the same during arbitration.
Contradictorily, it can be witnessed that the process of arbitration is actually mentioned in the contracts created by the parties. In such scenario, it is evident that the arbitrator must abide by the rules and regulations rather will of the clients. However, there are chances that they may become biased and take bribe from one party and give partial verdict. It is not at all justified that the arbitrator will become biased while both the parties will be paying off for the arbitration process. It is expected that the parties’ determination can be challenged by the arbitrator who will provide sole opinion in any circumstance. Contradictorily, the parties’ will can never be dispensable no matter what the situation is in case of arbitration. There are two main circumstances under which possibility for bribery increases. Firstly, the matter of confidentiality is extremely important. In this context, confidentiality is relevant to nothing but arbitral proceedings. Second most important aspect is stringency and scope of various duties reported to the concerned jurisdiction. In international commercial arbitration confidentiality plays an important role which needs closer examination. Whether the parties are involved in bribery or it cannot become clear until and unless the entire process becomes completely transparent. One of the most prominent case laws that can be witnessed is Rainstorm vs. Anthony Lombard-Knight. In this case it can be noticed that the two parties mentioned above entered into a business contract. The case primarily revolved around investment agreements. The party who was actually winning proposed an application where enforcement of laws was sought, especially in England. However, by contradicting the public policy, the losing party applied for setting aside enforcement. The challenge was made regarding the fraudulency of arbitration proceedings and also flaws in the agreements. In fact, the arbitration agreements were hardly provided in their original forms. Moreover, the agreements need not require any certification which was also claimed alongside. The losing party here suspected that some sort of fraudulence took place in regards to manipulation of agreements. Statement of truth was endorsed alongside with the claim form and it was also evident that the same can be then perceived to be original copies. There are definitely high chances that bribery may happen and weaken the case for losing party. In these types of scenarios it can be understood that the arbitrators do not have much role to play in tackling corruption especially when his or her dispute resolution is dependent on the documents provided by the parties. It is quite clear that the arbitrator cannot take decisions or they may remain reluctant to participate in truth finding procedure. On the contrary, it is also punishable to unnecessarily blame the arbitrators for indulging in bribery or corruption. In fact, it is not expected from the parties to intentionally erect hurdles for the legal system of a nation in the name of justice, especially when the arbitrators are hardly instrumental in proceeding eradication of corruption at any circumstance.
Another case is also quite evident, that is, Citigroup, Inc Abu vs. Dhabi Investment Authority, where direct involvement of UAE’s client can be witnessed. On the other hand, the case demonstrates separate investment agreement where ADIA invested hefty amount of money in Citigroup; there was also an arbitration clause attached to the same. A third party was allotted for conducting the procedure of arbitration in case such scenario occurs. The plaintiff’s claim was actually proved null and void after several hearings with the arbitrator. On the contrary, arbitration process was again asked by the authority so as to prove that Citigroup actually bribed the arbitrator largely and that is why verdict was in its favor. The reality was definitely otherwise and that is why dispute was resolve abruptly.
Judgment 282 of the year 2012 is also distinct in case of arbitration. Dubai court was in jurisdiction where the case was finally shifted. The award’s enforcement was challenged by the arbitrator in front of Dubai court as the primary claim. On the contrary, the case was claimed to be a matter pertaining to public policies. Moreover, most importantly agreement for arbitration was not at all evident and thus reviewing was required. Therefore, in these situations it is more likely that the arbitrator takes bribe and then manipulates decision or final verdict.
The arbitration processes are affected by anti-corruption investigations. Justice system’s fairness is also judged by the arbitration process itself or arbitrator. Both documents and arguments have to be taken into considerations by no one other than arbitrator. The public affairs are definitely into question when corruption is witnessed. Contractual obligations are in question when ethical aspects are regarded important. Anti-corruption and domestic legislatures are extremely critical for judging. On the contrary, the state or nation’s economy is in question when investors become reluctant to invest further due to weak legislation system of the jurisdiction. Investment when become scare often lead to failed poverty alleviation and economic development.
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Interpretation of Data
A correlation can be drawn between the collected information. To be more precise, arbitrators need to be indulged in undertaking a thorough investigation even when there are strong corruption allegations being imposed. The adverse impact on arbitration process can be reduced to a minimum through inquiring any illegal activity. In general terms, arbitrators actually do not have any such specific role so as to combat corruption. Hence, the legal statutes need to be redefined where arbitrators should be made accountable for handling corruption allegations. The case laws depict the different instances where arbitration process failed due to lack of concern towards corruption issues. The inconsistencies prevalent within the domestic corruption legal framework ultimately negatively influenced the arbitration process. It is essential for arbitrators to be an active part of the investigation process so as to avoid arbitral awards or the process from getting invalid. The contractual nature of the arbitration process revolves around the settling agreement. Therefore, arbitrators are usually reluctant towards addressing any additional issues of corruption. This in turn provides an added advantage to one of the parties. The best possible way to tackle corruption issues is to self-investigate and gather relevant evidence on the outlined corruption incident. However, it shall be a challenging aspect to move beyond the initial set of duties, as an arbitrator.
Corruption issues can only be tackled only when both the parties and arbitrator himself become aware about the facts largely. The arbitrator’s participation is required sparingly and more importantly there is also requirement for introspection of moral ideals so as to safeguard parties as well as legal system from further corruption. In fact, there are high chances that the corruption will prove to be detrimental for each and every one in the system, right from parties to foreign investors.
Future improvements of the law
The international or the UAE law is more inclined towards defining the basic duties of an arbitrator. On the contrary, corruption is a key influential driver in arbitration setting. Therefore, it is important to restructure the existing legal framework. It is recommended that a new legal clause should be introduced within the arbitration agreement where the tribunal will be solely responsible for combating corruption with the support of domestic corruption laws. A legal duty shall make an arbitrator relatively more accountable in such scenarios.
In most cases legal duty pertaining to arbitrator is considered while moral duty is less talked about. As a result, whether it is the legal system of United States or UAE future improvements are dependent on focus given to various aspects related to both moral and legal duties.
Conclusion
From the above research study, it can be concluded that arbitrator’s role was previously not considered to be limited to offering arbitral awards. The corruption rate has also rapidly increased with the growth in arbitration proceedings. It can be argued that undefined responsibilities or duties of an arbitrator tend to make them reluctant towards corruption allegations. Such form of indifferent attitude eventually leads to making the entire arbitration proceeding turn void. It should be properly understood that keeping a track on corruption issues would certainly not affect the actual arbitration decision. The active involvement of arbitrators would definitely prevent undue influence of third parties in the process. In this research paper, a critical analysis has been undertaken on existing scholarly work and existing legal facts. The study has outlined some case laws where extensive anti-corruption investigations had affected the arbitration process. The main reason being anti-corruption investigations are usually conducted by the superior authority. In such situations, undertaken arbitration decisions are no longer considered to be feasible. The only way through which national justice can be established is by making arbitrators accountable for corruption allegations. It can be claimed that defined set of responsibilities would motivate arbitrators to effectively respond towards corruption allegations. The framed research objectives have been addressed through presenting certain case laws and legal articles. The key role of arbitrators is to resolve disputes and bring forth justice which can even be extended to tackling corruption issues.
After globalization international platform witnessed several cases related to corruptions during trade agreements. In such scenario, arbitrators had to take part in resolving cases and refrain them from becoming large scale ones. It is also evident that the arbitrators remain indifferent even after seeing that several cases are largely motivated by corruptions. As a result, this attitude is not at all acceptable and encourages effort to harmonize the same. On the contrary, the arbitrator is always subject to the parties’ mercy as they hire him or her as per the agreement prepared during the start up stage.
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