Research On The Identification Of Investment Corruption In International Investment Arbitration

International investment Corruption is a common problem in practice and has aroused the continuous attention of international organizations and countries.With the continuous development in the field of foreign investment and the further promotion of the Belt and Road Initiative,the ability to attract foreign investment and overseas investment have been significantly improved,and more attention should be paid to investment corruption.There is also an increasing trend of investment corruption claims in international investment arbitration.Whether the investment corruption charge is established directly affects the final result of the investment claim.It meets the practical needs to deal with investment corruption through international investment arbitration,but the international investment tribunal has a realistic dilemma in determining investment corruption.On the one hand,corruption has strong seriousness and concealment,and the investment tribunal has insufficient investigative power,which intensifies the difficulty in identifying investment corruption.On the other hand,despite the existence of international conventions such as the United Nations Convention against Corruption,there is a lack of specific rules as a basis for the identification of investment corruption in arbitration practice.The rules in domestic law have certain limitations and great differences in the identification of international investment corruption.These problems lead to great differences in the identification of investment corruption and the lack of identification requirements.These problems are manifested as the lack of identification requirements and the disunity of proof in the identification of investment corruption.In terms of behavioral requirements,as for the investment corruption carried out by intermediaries through the signing of consulting agreements,there are cases that are obviously lacking in the specific identification of the corruption carried out against public officials.On the premise that the relationship between investment and corruption needs to be clearly defined,Metal-Tech v.Uzbekistan lacks a specific identification of the causal relationship and directly establishes the existence of investment corruption by inference.In similar cases,Niko Resources v.Bangladesh and others analyzed the causal relationship and determined that the investment corruption did not exist according to the lack of this requirement,and the investment corruption claims were dismissed.In the case represented by the World Duty Free v.Kenya,the attribution of the acts of public officials was insufficient,leading to the imbalance of interest protection.The subsequent cases had certain progress and development.It should be clear that the attribution of the acts of public officials should be strictly recognized in accordance with the Draft articles on Responsibility of States for internationally wrongful acts.Some countries do not ascertain the act of giving advantages to people who have influence on public officials as corruption crime.BSG v.Guinea and Kim v.Uzbekistan have different approaches in the analysis and application of international law,leading to different findings.Therefore,it is necessary to clarify the application of domestic law and international law in combination with relevant arbitration rules.Analyze the conduct in detail and make an award.Although international investment arbitration itself has the characteristics of flexibility and the result of dealing with investment corruption is different from domestic courts in that conviction and punishment do not required.There is no need for strict identification criteria.However,taking into account the above problems and the seriousness of investment corruption,it is necessary to change the previous identification thinking mainly based on relevant facts and a unified identification path.In strict accordance with the existing applicable laws,on the basis of clear constituent elements and combined with relevant facts,analyze whether the investment corruption should be prohibited,and gradually form the consistency of identification standards.In the case of Laos Holdings NV v.The Government of the Lao People’s Democratic Republic,it is obviously reflected that different standards of proof have a great impact on the result of investment corruption identification.In practice,due to the lack of specific applicable law,the arbitration tribunal considers that the arbitration tribunal has the discretion in the rules of evidence according to relevant rules of arbitration proceeding.In the case of investment corruption,there are obvious differences in the standard of proof applied by the arbitral tribunal,and there are also great disputes in the academic on this issue,mainly the differences between the high application of clear and convincing standard,the application of probability balance standard and flexible standard of proof.The application of flexible standard of proof will lead to the lack of predictability of the award,affect the consistency of the award,and worsen the widespread doubts about the legitimacy of international investment arbitration.Based on a comprehensive analysis of the cases that apply a higher standard of proof in the existing practice,the lack of evidence and the lack of investigative power of the arbitration tribunal,almost all fail to identify the existence of investment corruption,which hinders the possibility of combating investment corruption.However,the probability balance standard has met the need of the identification of investment corruption,and conforms to the actual cases of investment corruption and the actual needs of combating investment corruption.In addition,whether to apply the shift of burden of proof under prima facie evidence in investment corruption cases is also different.The applicable premise of the shift of burden of proof is lack of clear standard,and the shift of burden of proof does not meet the requirements of due process,so it is not suitable to apply the shift of burden of proof in the identification of investment corruption.In addition,since the identification of investment corruption largely relies on circumstantial evidence,it is necessary to clarify the role of circumstantial evidence in the identification of investment corruption,so as to make up for the deficiency of the investment arbitration tribunal in the investigation power.Meanwhile,the criteria for the identification of investment corruption by indirect evidence should be applied,so as to avoid the excessive width of the identification criteria for investment corruption,which is detrimental to the protection of the rights of the respondent.Needs to form a complete chain of evidence that logically leads to a single conclusion.An important reason for the specific problems in the identification of investment corruption lies in the lack of applicable clear rules,which leads to a lot of disputes and deficiencies in the identification.International investment agreements are an important source of law of international investment arbitration.Some tribunals have identified investment corruption at their discretion because of the lack of specific provisions in international investment agreements and relevant arbitration rules.In practice,more and more investment agreements have begun to include anti-corruption clauses.Anti-corruption clauses should be included and refined in the investment agreement,and the content of investment corruption behaviors should be clearly stipulated in the investment agreement,so as to lay the foundation for the identification of investment corruption requirements,unify the identification of investment corruption,and improve the deficiencies in the identification practice.It need to specifically stipulate applicable standards of proof and identifying investment corruption by circumstantial evidence,which can provide clear applicable standards for identifying investment corruption.Clarify the responsibility of the host country to take necessary measures to crack down investment corruption,balance the responsibilities and obligations of both sides,and achieve the target of combating investment corruption.In this way,the existing problems can be solved to some extent,and at the same time,it is in line with the current practical demand and development trend of cracking down on investment corruption,and provides a feasible path to solve the problem of investment corruption identification.