Research On The Standard Of Proof Involving Bribery In International Arbitration

Along with the economic development of the economic globalization, it has closerrelationship among the countries. Transnational corporations have become the main force ofthe process of globalization. With the growth of international communication, the number ofeconomic disputes increases. And bribery exists in the economic cooperation, which has aside effect on the healthy development of the economy. International arbitration system asone of ways of dispute solution plays a more important role in the solution of dispute. Thedispute that the contracts involving bribery submitted to international arbitration tribunalincreases gradually. Although the international society has formed the public policy ofanti-bribery, especially the adoption of "United Nations convention against corruption", inpractice the arbitration tribunal takes" higher standards of proof " to deny the existence ofbribery that leads to the contract involving bribery having an effect. It is difficult to answerthat international arbitration tribunal takes higher standards of proof whether to be applicableor not. Although many scholars take research on the standards of proof, the study how todetermine the standards of proof involving bribery is less, so under this condition it needsmore scholars to make research.In addition to the introduction and conclusion, the article is divided into four majorsections. The author uses comparative analysis, case analysis, the literature research methodsand compares the standards of proof involving bribery of common law and civil law system.The international arbitration tribunal takes the higher standards of proof in the case involvingbribery, through the process shows the attitude of the arbitration tribunal, which leads to thecontract involving bribery with an effect. The results run counter to international publicpolicy. Confronting with this condition China will take many kinds of measures to cope withthe problem.The first part is about how the arbitration tribunal apply the international evidence rules.In this part the writer elaborates the importance of the evidence rules in the internationalarbitration; then introduces the characteristics of the arbitration tribunal evidence rules, such as the autonomy of the parties, the discretion of arbitrators; at last explains the specificinstructions for the arbitration rules of evidence in the regulations.The second part is about the general theory of the standards of proof in the internationaltribunal. This part explains the definition of the standards of proof, the relationship betweenthe standards of proof and evidence, the basis on establishing the standards of proof. Andthen the writer introduces the standards of proof in common law and civil law system, incommon law system the standards of proof of probability can be divided into the standard ofthe advantage evidence, clear and convincing standard of proof, ruled out a reasonable doubtstandards of proof. The civil law system is the standards of proof called “inner conviction”.Finally the writer analyzes the differences in the standards of proof between common law andcivil law system.The third part is about how the international arbitration tribunal apply the standards ofproof in bribery cases. First the writer introduces the form of the cases involving bribery, andthen through the specific case to reveal how the arbitration tribunal apply higher standards ofproof in bribery cases, such as, Westinghouse case, Hilmarton case, international commercearbitration court case No.4145, through the analysis of the arbitration process to show thetribunal how to determine the standards of proof. And finally the writer analyses the higherstandards of proof in arbitration leading to the violation of the international public policy, theprovisions of domestic law and the damage to the agreement of the parties.The fourth part is about what measures that China would take in the addition that applyhigher standards of proof involving bribery. The writer thinks that should take actions inInternational and domestic law, such as in international law, the standards of proof in BITregulation would be definite, and international judicial cooperation should be strengthen ininternational commercial bribery; in the domestic law, the definition of bribery should beperfect, and the contract involving bribery should be invalid, and the Chinese governmentshould take various measures to discover and correct the bribes in multinational business.