Study On The Arbitrability Of Bribery In International Investment

The bribery in international investment is becoming more and more serious. Simultaneously, the number of allegations of bribery in international investment arbitration is also in an uptrend. Therefore, the phenomenon of bribery is becoming the focus of international investment arbitration cases. Although there are some defects in the hearing procedure in the arbitration of bribery, the reason why arbitral tribunal can’t hear bribery is not sufficient. Moreover, the practice of international investment arbitration also illustrates that bribery is arbitral. This dissertation aims to improve the procedures and rules in the arbitral tribunal hearing process of bribery by proposing suggestions.This dissertation includes four parts.The first part is an overview of bribery in international investment, including the definition, elements and influence of bribery. In the beginning, it addresses the provisions of bribery in international files and domestic law. Then the elements of bribery behavior in international investment will be presented, and then it analyses the influence of bribery in the perspective of host country and home country respectively.The second part is about the practice of international investment arbitral tribunal hearing bribery. The attitude of international commercial arbitration is witnessed an obvious change from unsupportive to supportive by the evidence of the principle of party autonomy and the independence of arbitration clause, etc. Although there is no consensus on bribery, international investment arbitration tribunal prefers that bribery is arbitral with three results:firstly, ruling that it has no jurisdiction; secondly, accepting the corruption defense of respondent, and dismissing the arbitration request; thirdly, dismissing the corruption defense of respondent. Finally, it analyses the necessity of hearing bribery in international arbitration with combination of the practice.The third part analyses the legal basis of International investment arbitration of bribery. Initially, it addresses the international investment agreement including terms of legitimacy, fair and equitable treatment and future trend of anti-corruption provisions. Then, it discusses the relevant international conventions on anti-corruption, which contains United Nations Convention against Corruption, OECD Convention and other international legal documents. In addition, it analyses domestic law in the host country and the principles of general law respectively, and general law includes:International public policy, the principle of goodwill and no benefit from illegal act.The final part proposes several suggestions on the improvement of arbitration procedure on the hearing process of bribery in International investment arbitration. Firstly, it points out the defect of arbitration procedure on the hearing of bribery, such as limited authority of investment arbitration tribunal, unclear standard of proof. Three measures are proposed correspondingly:the arbitration tribunal shall have the right to take the initiative to investigate bribery, adopt higher proof standard and prove bribery by indirect evidence. Finally, this dissertation puts forward some suggestions to solve the problems in China.