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Corruption in International Investment Arbitration [Hardback]

(Legal Counsel, Permanent Court of Arbitration in The Hague)
  • Formāts: Hardback, 358 pages, height x width x depth: 248x186x25 mm, weight: 782 g
  • Sērija : Oxford International Arbitration Series
  • Izdošanas datums: 04-Sep-2014
  • Izdevniecība: Oxford University Press
  • ISBN-10: 0198714262
  • ISBN-13: 9780198714262
  • Hardback
  • Cena: 311,56 €
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  • Formāts: Hardback, 358 pages, height x width x depth: 248x186x25 mm, weight: 782 g
  • Sērija : Oxford International Arbitration Series
  • Izdošanas datums: 04-Sep-2014
  • Izdevniecība: Oxford University Press
  • ISBN-10: 0198714262
  • ISBN-13: 9780198714262
This is the first comprehensive study of corruption in international investment arbitration. The book considers the limited effectiveness of efforts to combat transnational corruption in international law and the emergence of international investment arbitration as a singular means for effective control of corruption within the international legal order. The case law on corruption by investment tribunals is studied exhaustively, jurisprudential trends are identified, and reforms aimed at enhancing the effectiveness and fairness of investment arbitration as a mechanism to combat corruption are proposed.

Divided into three parts, part I focus on the phenomenon of corruption in foreign investment and attempts at its control through international law. Part II analyses the available case law in international investment arbitration dealing with corruption. Llamzon identifies nine distinct trends emerging from the case law and provides a table summarizing the key areas of corruption decision-making and each relevant tribunal's approach, which is an invaluable tool for practitioners engaging in 'live' issues of corruption within arbitral proceedings. Part III reflects on the implications of these trends for both the 'supply' and 'demand' sides of corruption in international law, and proposes a integrative framework of decision for corruption issues in international investment arbitration.

Recenzijas

This comprehensive book offers a probing examination of the relationship between investment arbitration and corruption, based on careful legal research and rigorous analysis. It is a fine piece of scholarship--the culmination of the authors doctoral dissertation--that is also grounded in the reality of arbitral decision-making, surely enriched by the years that the author spent as a lawyer at the Permanent Court of Arbitration. * Joan E. Donoghue, Judge, International Court of Justice. ICSID Review * Fighting corruption has become a major focus of legal practice in recent years, and thus Aloysius Llamzon's comprehensive and well-written book, Corruption in International Investment Arbitration, should find a wide and appreciative audience.In sum, [ it] is an excellent resource that will be relevant not only to students of investor-state arbitration but to all those who have an interest in the legal and policy debates surrounding the efforts to combat corruption. * Stanimir A. Alexandrov, Sidley Austin LLP, The American Journal of International Law * In Corruption in International Investment Arbitration, Dr Llamzon addresses one of the most interesting and complex emerging issues in investment law. ... Dr Llamzon's thoroughly-researched work not only undertakes a detailed review of the current state of the law but also provides perceptive insights into the issues that will be at the heart of the future development of this increasingly important topic in investment arbitration. This ground-breaking book is essential reading for anyone with an interest in corruption in international investment law, and will undoubtedly become a defining work in the field for both practitioners and scholars. * Peter Tomka, President of the International Court of Justice * This book deals with international investments tainted by corruption and with the fate of such investments in international arbitration. [ Llamzon's] work is elegantly, concisely and precisely written. It dispenses with the customary show of moral indignation which so often - and to no avail - accompanies a phenomenon which must have existed from time immemorial but has hit the limelight with the constant growth of international investment and the all-pervading presence of modern means of communication. The book is impeccably researched and deserves a place in the libraries not only of those professionally involved with foreign investment, but all those interested in the phenomenon of corruption in international business. * Lucius Caflish, United Nations International Law Commission * Dr. Llamzon's study of Corruption in International Investment Arbitration is a searching, lucid and unmatched analysis of a sensitive problem of great practical importance. * Stephen M. Schwebel, former Judge of the International Court of Justice * In sum, Corruption in International Investment Arbitration is an excellent resource that will be relevant not only to students of investor-state arbitration but to all those who have an interest in the legal and policy debates surrounding the efforts to combat corruption. * Stanimir A. Alexandrov, The American Journal of International Law, July 2015 *

Table of Cases
xix
Table of Legislation
xxiii
List of Abbreviations
xxvii
1 Introductory
Chapter: Arbitrating Transnational Corruption
A The Decision-maker's Dilemma
1(2)
B The Subject of Study
3(5)
C The Phenomenon
8(7)
D Anti-Corruption: Formal Laws and Informal Codes
15(7)
E Investor Protection in International Investment Arbitration
22(4)
F Arbitral Attitudes
26(4)
G Competing Legal and Policy Questions
30(7)
H Overview of the Book
37
PART I TRANSNATIONAL CORRUPTION AND INTERNATIONAL EFFORTS AT ITS CONTROL
2 The Nature of Transnational Corruption
A A Working Definition of Corruption
1(12)
B The `Inevitability' of Corruption in Social Development
13(7)
C Perspectives from Economics
20(7)
D Prohibited Corruption vs. Permitted Inducement
27(11)
E The Natural Habitat of Transnational Corruption
38
3 A Typology of Corruption in Foreign Investment
A Introduction: Taxonomic Distinctions
1(3)
B Governmental Action Purchased: Transaction vs. Variance Bribery
4(16)
C Corruption as Risk-Abatement: Political vs. Economic Risk
20
4 International Efforts to Combat Corruption in Foreign Investment
A An Overview
1(5)
B National and International Anti-Foreign Corruption Instruments
6(68)
C Efforts to Utilize International Arbitration for Enforcing Anti-Corruption Norms
74(6)
D Conclusion: The Limits of the International Anti-Corruption Consensus
80
PART II THE JURISPRUDENCE ON CORRUPTION IN INTERNATIONAL INVESTMENT ARBITRATION: CASE AND TREND ANALYSIS
5 The Scope of Inquiry: Treaty vs. Contract `Investment Arbitration'
A Background to the Commercial/Investment Arbitration Dichotomy
1(5)
B Similarities in Procedure and Personalities
6(4)
C Investment and Commercial Arbitration: the Differences
10(7)
D Protected `Investments' and the Host State's Economic Development
17(13)
E Contract-Based International Investment Arbitration
30(9)
F A Note on the Cases Selected for Analysis
39
6 The Cases
A Cases where Corruption was Outcome-Determinative
1(70)
B Cases where Corruption Allegations did not Prosper
71
7 Emergent Trends
A Introduction
1(2)
B Corruption Allegations are Almost Never Outcome-Determinative
3(7)
C Corruption is Raised Mostly by Host States as a Complete Defence
10(4)
D Investors Sometimes Raise Corruption, Without Success
14(2)
E Who Alleges Corruption Tends to Affect its Treatment by Tribunals
16(4)
F Elevated Evidentiary Standards Have Frequently Been Required for Corruption
20(3)
G Corruption is Sometimes Pursued through Other Means
23(3)
H Few Tribunals Have Inquired into the Host State's Prosecution of Corrupt Public Officials
26(3)
I When Corruption Occurs Affects its Legal Consequences
29(4)
J Corruption is Alleged Increasingly, with Preclusive Effect
33
PART III TOWARDS A JURISPRUDENCE CONSTANTE IN INVESTMENT ARBITRATION DECISION-MAKING ON CORRUPTION
8 Mere Corruption? On the Reluctance to Decide Corruption Issues
A Avoiding Corruption Issues: An Overview
1(3)
B The Importance of Investment Arbitration Decisions in the Progressive Development of International Law
4(6)
C Mere Corruption? Understanding the Scarcity of Corruption-Related Arbitral Reasoning
10(20)
D The Reasons Requirement and Operational Codes in Investment Arbitration Decision-making on Corruption
30
9 Proving Corruption
A Introduction: The Difficulty of Proving Corruption
1(3)
B Tribunals as Inquisitors? The Duty to Pursue Corruption Allegations
4(4)
C Burdens of Proof, Presumptions, Inferences, and `Red Flags'
8(7)
D Standards of Proof
15
10 State Responsibility for Corruption: The Attribution Asymmetry
A Introduction: The Bilateral Nature of Corruption, International Law and State Responsibility
1(8)
B State Responsibility in International Investment Arbitration
9(10)
C The Salient Investment Arbitration Decisions: An Analysis
19(15)
D State Responsibility and Transnational Corruption
34(59)
E Conclusion: Principles on State Responsibility for Corruption
93
11 Concluding
Chapter: Legal and Policy Tensions Underlying Anti-Corruption Decision-making
A The Scope of Arbitral Decision-making on Corruption
1(9)
B Competing Policy Goals
10(26)
C Distinguishing Political Risk from Economic Risk
36(269)
Appendix 305(16)
Index 321
Aloysius Llamzon, A.B., J.D. (Ateneo de Manila), LL.M., JSD (Yale Law School), is Legal Counsel at the Permanent Court of Arbitration in The Hague. Dr. Llamzon assists tribunals in inter-State, investment, and commercial arbitrations, including as Registrar or tribunal secretary. He is the Registrar of the Indus Waters Kishenganga Arbitration (Pakistan v. India). He was formerly an associate at the Hong Kong office of a leading U.S. law firm, a leading firm in Manila, and a lecturer in arbitration and international law at universities in Manila and Hague.