Shall We Dance? How Arbitral Tribunals and National Judiciaries Can Move in Tandem to Stop Corruption While Not Stepping on the Other's Toes
Abstract:
International arbitration tribunals and the national courts that annul or recognize and enforce the final awards have had a long and sometimes tumultuous relationship with each other. This relationship becomes even more strained when corruption finds its way into an arbitral proceeding that the court must then review. While there are a number of different means a tribunal can inquire into such illegalities, and a handful of distinct levels of review a national court can pursue when reviewing an arbitral award, there is not an agreed upon set of guidelines for either system to allow both institutions to work together without a court interfering in the tribunal’s independent authority or a tribunal ousting corruption in a manner the court would approve. Arbitral tribunals must ensure that issues of corruption are addressed head on while also establishing a uniform standard of proof, sufficient for a court to enforce an award without intrusive investigation of the tribunal’s decision. Courts must balance the ethical duty to stop corruption while also respecting the finality of the arbitral award. There is a growing international consensus that corruption is always a violation of public policy, no matter the jurisdiction, and such illegalities cannot stand. Therefore, if arbitral tribunals and national courts cannot find a rhythm with one another regarding appropriate action in the face of corruption, there will be more than bruised toes as a result.
Recommended Citation: Jaimee Salgado, Shall We Dance? How Arbitral Tribunals and National Judiciaries Can Move in Tandem to Stop Corruption While Not Stepping on the Other's Toes, 48 Fordham Int'l L.J. 109 (2024).