Corrupcion En Arbitraje

INTERNATIONAL ARBITRATION AND CORRUPTION:
An Evolving Standard*
A. TIMOTHY MARTIN
adr.governance.inc
CALGARY, ALBERTA, CANADA
Introduction
International arbitration has been used to resolve disputes for a long time. As noted by
one commentator: “Commercial arbitration must have existed since the dawn of
commerce.”1 Unfortunately, another side of business transactions, corruption, has beenaround a long time also.2 Inevitably, it has appeared in international commercial
arbitration cases. This article reviews some of those cases and analyzes the evolving
trends on how international arbitrators have dealt with this difficult issue.
Most countries in the world have laws dealing with corruption. However until recently,
they have dealt primarily with corrupt activities within acountry’s own borders. They
have historically not been extraterritorial in nature. That changed with the enactment of
the Foreign Corrupt Practices Act3 (“FCPA”) in the United States in 1977, which
criminalized the bribery of foreign government officials. Even though there has been a
growing body of opinion and jurisprudence (as evidenced in the attached cases) that there
is a moral consensusor international public order on the illicit nature of foreign
corruption, it has only been in recent years that a large number of countries have formally
agreed, through treaties, to enact similar laws to make it a criminal offence for their
nationals to bribe foreign public officials.4 There are now several major treaties ratified
by more than 60 countries addressing this significantinternational issue, including:

1

Lord Musthill, “Arbitration: History and Background” (1989) 6 Journal of International
Arbitration, p.43.

2

For a more complete history of corruption in both business and government, see: J. Noonan, Jr.,
Bribes (New York: Macmillan, 1984). A. Timothy Martin, “Corruption and Improper Payments:
Global Trends and Applicable Laws” (April 1998) Volume 36, No. 2Alberta Law Review 416.
A.Timothy Martin, “The Development of International Bribery Law” (Fall 1999) Vol. 14, Issue 2
Natural Resources & Environment, ABA. Michael Levi & Monty Raphael, “Anti-Corruption - a
signpost for transactional lawyers” (1999)Issue 1 Business Law International, IBA.

3

Pub. L. 95-213, 91 Stat. 1494 (1977), as amended by Omnibus Trade and Competitiveness Act of
1988.Pub. L. 100-418, Title V, Sec. 5003(c), 102 Stat. 1107, 1419 (1988)(codified at 15 U.S.C.
78dd-1,2), and further amended by The International Anti-Bribery and Fair Competition Act of
1998, s.2375.

4

Lucinda Low and Michael Burton, “The OECD, OAS and Council of Europe Antibribery
Conventions: New International Standards and their Implications” (September, 2000) ABA Third
Annual Symposiumon the Implementation of the OECD Convention, Bruges, Belgium.

* An earlier version of this paper was presented in the International Energy and Minerals Arbitration,
Mineral Law Series, Volume 2002 (Spring 2002).

-2•

OECD Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions 5

•

OAS Inter-American Convention Against Corruption 6

•Council of Europe Criminal Law Convention on Corruption 7

More work is being done on other conventions such as the Organization of African Unity
Convention on Combating Corruption that could include another fifty countries. Finally,
the United Nations Convention Against Corruption will possibly be completed by the end
of 2003. This convention will cover the entire UN membership resultingin a worldwide
consensus on the illegality of corruption.
Until now the cases enforcing these laws have been strictly American.8 There have been
nearly 40 prosecutions and settlements and about 35 opinions or “review releases”
concerning the bribery sections of the FCPA. There have been a small number of
reported prosecutions under the foreign bribery laws of other countries; a reflection...