By: Christiane Freire de Paula Reis
1. Introduction
Corruption and International Arbitration have been around for a long time. It is also true that in the past decades there was a great hike of cases in which both topics are intertwined. Corruption is everywhere and it is never going to be totally vanished, but due to a moral consensus on the illicit nature of foreign corruption and the necessity to tackle this issue, a large number of countries have formally agreed, through global and regional anti-corruption conventions, to enact similar laws to combat this significant international issue and its insidious effects.[1]
Corruption is becoming an increasing concern in all business sectors, including the oil and gas industry. The complexity of the working and contractual relationships with governments, venture partners, suppliers, and other contractors makes compliance with anti-corruption regulation something that requires significant attention and improvement. Also, as business in emerging markets continues to grow for the oil and gas sector, companies will become more challenged by corruption risks.
In this regard, there is now a current tendency of high Foreign Corrupt Practices Act (“FCPA”) penalties in the sector which means that oil and gas companies will be subject to enduring scrutiny from enforcement agencies, including new sweeping legislation such as the UK Bribery Act. In fact, in its most recent Bribe Payers Index, Transparency International identified companies in the oil and gas sector as being perceived to be more likely to bribe than those in other sectors.[2] Since Brazil is the focus of the present work, Petróleo Brasileiro S.A. (“Petrobras”) corruption scheme serves here as a good illustration for the present topic.
Generally, the arbitration community have largely explored the legal consequences of corruption in the arbitral proceedings, but they have not consistently examined the more practical reasons why arbitral tribunals avoids the difficult task of adjudicating allegations of corruption, especially when neither party alleges it. Actually, there are only few that really want to dive into these dark waters and make a real and impactful change. Ironically, the confidentiality and privacy of the arbitral proceedings that at first might seem one of the most valuable characteristics of international arbitration, it actually could constitutes a shield from allegations of corruption from public awareness and/or scrutiny.[3]
In recent times, Brazil is undergoing a major change in terms of combating corruption, as well as being emerging as a qualified and efficient seat to host and resolve international disputes through Arbitration, including the ones that emerges from the Oil and Gas Sector. Also, considering the explosion and popularity of arbitration in Brazil, and the substantial expansion in the number of regional arbitral institutions in the country, the main purpose of this work is to address what Brazilian Regional Arbitral Institutions are doing, and what they could have done better on strengthening the idea that Arbitration is not a safe harbor for corruption, as well as what might be their future challenges on protecting the legitimacy of the arbitral process in times like these.
2. Sector
In 2013, the “Operação Lava Jato” (“Operation Car Wash”) unveiled a web of corruption that had been happening from at least 2003 to April 2012, involving prominent Brazilian politicians that abused their power by appointing people of their choosing to specific executive positions in Petrobras, and demanding rewards from the appointees. Car Wash also revealed that the appointees then engaged in corruption schemes that benefited themselves and their political patrons, including by diverting billions of dollars from overpriced contracts for infrastructure projects.
This massive scheme to defraud Petrobras, the biggest state-owned company and a symbol of Brazil’s deep-rooted economic nationalism, has implicated politicians from several parties across the ideological spectrum, and it has given rise to investigations across Latin America and United States. As an example, in 2018, the Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) assessed penalties and disgorgement of U$1.78 billion against Petrobras to resolve FCPA violations.[4] Petrobras entered into a non-prosecution agreement with the DOJ that included a criminal penalty of US$ 853.2 million,[5] and it reached a settlement with SEC for misleading investors.[6]
Over the last decade, Brazil is experiencing a major change in terms of combating corruption, as well as rising as an equipped and efficient seat to host and resolve complex international disputes. This boom is largely due to the development of a comprehensive supporting legal framework and infrastructure, by doing a renovation in its domestic arbitration laws, and entering and ratifying treaties providing for arbitration[7]. In Brazil, since 2001, when its Supreme Court (“STF”) declared the Brazilian Arbitration Act[8] (“BAA”) constitutional, and almost immediately thereafter Brazil ratified the New York Convention. In recent years, there has been some development in terms of statutory modifications in Brazil with considerable improvements for arbitration, including the broad authorization for public entities to resort to arbitration, among others.
Also, in 2015 it was enacted the Law 13.129/2015 which brought some changes to the original text of the Brazilian Arbitration Act, including the express authorization for the use of arbitration by the Public Administration. Based on such express authorization, it is likely that the Brazilian State will increasingly seek to resolve its disputes through arbitration, and that arbitrators, who previously worked mainly in litigation involving private entities, they will now face disputes involving the public power and, consequently, are even more on the verge of dealing with issues related to corruption, including in cases where Petrobras and other public companies are involved.
So corruption, as a matter subject to the arbitrators’ assessment, ought to be analyzed as an incidental issue in the arbitral proceeding, which means that arbitrators are not dealing with the possibility of applying criminal law and imposing the applicable criminal penalties to the parties.[9] On the contrary: when referring to corruption, arbitrators will basically examine the civil consequences of a corrupt act and its impact on the arbitration process as an essential issue while deciding the arbitral proceeding. Therefore, in the next chapters it will be analyzed how regional arbitral tribunals in Brazil are dealing with such behavior.
3. Discussion
Institutions received such a name not by chance. This article will utilize Douglass North’s definition of institutions as “any form of constraint that human beings devise to shape human interaction.”[10] Institutions create expected behavior which gives society the power of prediction. So, citizens can understand and distinguish what is good and bad behavior, the ones that warrant rewards and those that deserve punishment.[11] Therefore, the inherent value of institutions is to reduce uncertainty, and to increase stability out of certainty.[12] This is also true in arbitral institutions because it must, in all respects, act as the guardian of the arbitral proceeding in order to ensure the predictability of its procedures.[13]
Arbitral institutions are entities whose ambit is either to promote the practice of arbitration in a given jurisdiction, or to administer arbitral proceedings. Arbitral institutions are considered to be “the backbone of the epistemic arbitration community,” where a community of practioners, academics and arbitral institutions are sharing the same interests and expertise.[14] They can be private or have a public or semi-public status (g., chambers of commerce). The 2018 White&Case-Queen Mary survey[15] showed that, nowadays, international arbitration is predominantly administered rather than ad hoc, which gives to institutions a great responsibility in maintaining the legitimacy of the system.[16] According to Stephen Wilske, “[a]rbitral institutions have developed greatly from the time they were considered as simply administrative bodies with the sole responsibility to facilitate the arbitration designed by the parties or by the arbitrators they have selected.”[17] Today, such institutions are much more likely to be described as “gatekeepers” to the arbitral proceedings,[18] with their role notably exceeding that of a secretary.[19]
Following the popularity of arbitration in Brazil, there has been a substantial expansion in the number of regional arbitral institutions as well. In 2011, the Institute for Transnational Arbitration (“ITA”) completed its “Inaugural Survey of Latin American Arbitral Institutions”[20], and identified 165 regional arbitral institutions in Latin America, and surveyed 35 of the most important of these, 11 of them being Brazilian. Also, according to the National Council for Mediation and Arbitration Institutions (“CONIMA”), which is a Brazilian association of entities dedicated to represent mediation and arbitration entities, there are more than fifty affiliated institutions dedicated to alternative dispute resolution in Brazil.[21] According to Jonathan C. Hamilton, the main factors that have contributed to this booming of regional arbitral institutions in Latin America “include the expanded range of services offered (such as mediation and conciliation services), the establishment of independent and sophisticated sets of arbitration rules, typically low administrative costs, a growing roster of local practioners and the establishment of a local arbitration bar, as well as the development of modern facilities for hosting hearings.[22]
According to the Leaders League Ranking for 2020, the top 4 ranking of arbitral institutions in Brazil includes 3 regional arbitral institutions: Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada (“CAM-CCBC”), as the leading one, followed by Business Arbitration Chamber (“CAMARB”) and Chamber of Conciliation, Mediation and Arbitration of Sao Paulo (“CMA-CIESP/FIESP”).[23] International Chamber of Commerce (“ICC”) ranks very well, but it is not a regional one. Indeed, there are several regional arbitral institutions in Brazil, and some of them certainly provide excellent services to their users. CAM-CCBC is a good example that confirms this tendency in the growth of arbitration as an alternative dispute resolution mechanism in Brazil. CAM-CCBC has grown significantly over the last years, and since 1979, when CAM-CCBC was founded, 981 arbitration proceedings were initiated, over 50% being received in the last five years.[24]
So, together with the growth of arbitration in Brazil, the potential for conflicts of interests have also increased, mostly due to regional corruption scandals as already stated before.[25] Arbitrators’ challenges in the country are also very important to be noted because the balance between impartiality and independence must be established and guaranteed by arbitral institutions in order to guarantee the legitimacy of the arbitration proceeding. CAM-CCBC, as an example, has a Code of Ethicswhich aims to guide the conduct of the arbitrators from the prior phase of appointment, during arbitration, and after the award is rendered.[26] It also has established a specific proceeding for handling challenges to arbitrators by determining that an ad hoc committee shall be instituted to rule upon every challenge to arbitrators.[27]
Therefore, considering the explosion and popularity of arbitration in Brazil, and the substantial expansion in the number of regional arbitral institutions in the country, it is time to put all this positive data aside and find out how Brazilian arbitral institutions are dealing with corruption allegations. The relationship between corruption and regional arbitral institutions can be seen from two different perspectives. First, the arbitral institution behavior when it learns about corruption before a tribunal is constituted or it becomes aware that a tribunal is aware of possible corruption facts but elects not to report it. Second, the arbitral institution’s guidance to arbitrators that decide to raise corruption sua sponte or to report corrupt admissions to the appropriate authorities.
Generally, many scholars and commentators have largely explored the legal consequences of corruption in the arbitral proceedings, but they have not consistently examined the more practical reasons why arbitral tribunals avoids the difficult task of adjudicating allegations of corruption, especially when neither party alleges it. One of the main obstacles for that behavior is because proving corruption is inherently challenging for the arbitrator irrespective of the standard of proof a tribunal may decide to apply.[28] Parties involved in a corrupt act will have often sought to conceal their conduct, leaving no evidentiary trail. So, a contract may be tainted by other forms of wrongdoing in addition to or separate from corruption.
Also, the public interest in having information about arbitral proceeding that involves allegations of corruption conflicts with the inherently private character of this form of dispute resolution. Ironically, the confidentiality and privacy of the arbitral proceedings that at first might seem one of the most valuable characteristics of international arbitration, it could actually constitute a shield from allegations of corruption from public awareness and/or scrutiny.[29] This issue consequently creates an alarming and obvious risk that dishonest parties might feel motivated to refer disputes tainted with corruption to Arbitration instead of national courts because, with its private nature, it is less likely to expose the true nature of their dealings.[30] Unfortunately, corruption has found a safe harbor in arbitration and, therefore, arbitral tribunals must be aware of this trend and mindful of the “red flags” that can help them make a procedural presumption that the contract may be tainted with Corruption and raise the issue sua sponte.[31]
In the international scenario, it seems to be unanimous that issues related to corruption in arbitration are understood to be public policy, which imposes on the decision-maker the duty to interpret and to correctly apply the rules, not removing their jurisdiction to decide on the issue. There also seems to be a consensus in the international arena that arbitrators not only have jurisdiction on the matter, but also have the power to investigate on their own initiative (“sua sponte”) suspicious circumstances, and apply the applicable legal consequences, even if they have not been brought by the parties. Such approach can bring several solutions and clarity to the Brazilian reality, where there are still few published studies on this sensitive issue.
Another aspect that Brazilian regional arbitral institutions should take into consideration is the role of arbitral institutions with respect to the duty to report corruption admissions and findings. Under regular circumstances, when an arbitrator becomes aware of corruption in the arbitral proceeding, he or she will seek guidance from the arbitral institution, which might result in an indirect involvement and it will raise the question of its duty of disclosure.[32] However, it could be the possibility that the arbitral institution might be direct involved, where it learns about corruption before a tribunal is constituted, or if the institution becomes aware that a tribunal is knowledgeable of possible corruption but decides not to report it.[33] On such context, the duty to report falls on the institution itself.
It is very important to recognize that arbitrators have the primary responsibility on dealing with corruption allegations if they encounter them in their proceedings. According to Emmanuel Gaillard, “arbitrators, whose role is to adjudicate disputes in the international sphere, are perfectly placed to uphold the values of the international community and to contribute to this fight to continuing to develop responses to the difficult issues that arise in cases raising corruption issues.”[34] However, the arbitrators are largely left to their own, and are required to use their own experience and knowledge to deal with corruption allegations. The main issue is that they rarely get any guidance or assistance from arbitral institutions.[35] Nevertheless, arbitral institutions need to realize that there are some situations in which it is not possible to shift responsibility to arbitrators, but they need to be proactive in taking care of those dark sides of international arbitration.[36]
For now, the only arbitral institution that seems to be taking some steps regarding that matter in Brazil is the well-known foreign arbitral institution, the ICC. The international leading institution has issued in 2014 a Bulletin providing anti-corruption initiatives and their impact on arbitration.[37] Also, ICC developed rules to address the evidence-taking mechanism irrespective of the legal system. Article 25 of the ICC arbitration rules provides that the tribunal shall proceed within as short a time as possible in order to establish the facts of the case by “all appropriate means.”[38] In addition, ICC Commission on Arbitration has a current task force group addressing issues of corruption in International Arbitration. The task force was created to explore existing approaches to allegations of corruption or signs of corruption in arbitral disputes, and articulate guidance for arbitral tribunals on how to deal with such occurrences.[39] Also, around the globe, there also some noteworthy initiatives from arbitral institutions in this regard, such as the release of a “Toolkit for Arbitrators” in 2019 by the University of Basel’s Competence Centre Arbitration and Crime.[40]
Regional arbitral institutions in Brazil have no guidelines on such matter, but they need to be prepared to address such issues that will be even more evident in the near future. The emergence of Regional Arbitral Institutions could not ignore the fact that many arbitration users are disappointed with the work provided of well-established institutions that could not understand the aspirations and expectations of developing countries. Therefore, since regional arbitral institutions understand better the cultural and moral values of that region, there is an extreme necessity for them to start enacting good and modern rules and guidelines, as well as specialized, experienced and well-trained staff in order to deal with the situation.
According to Nassib Giadé, there are two factors that will determine the future of arbitral institutions: efficiency and legitimacy.[41] As he predicted in an article he wrote more than 10 years ago, the future role of arbitral institutions will be to put in place transparent and rule-based systems, and by doing that, “the less susceptible they will be to encroachments by national courts seeking to remedy real or perceived procedural weakness.[42] Jan Paulsson also noted in this regard in his well-known article on moral hazard in international arbitration: “Only a few arbitral institutions can make credible claims to legitimacy. Many arbitration institutions are empty edifices waiting for someone to bother to dismantle them. Others cannot get away from features of cronyism which were their raison d’être in the first place. When such defects are uncovered, it also becomes more difficult for well-established and punctilious institutions to seek credence. So how do we enhance and protect the legitimacy of decent arbitral institutions?”[43]
Although these might seem harsh words, they reflect the current reality. In contrast to arbitral practice, the creation and operation of arbitral institutions remain largely unregulated, not just in Brazil but in the whole world. According to Alexis Mourre, the current President of the ICC International Court of Arbitration, “there are no rules applicable to the creation of an institution, and very little regulation applying to their functioning and governance, which arguably poses a systemic risk for arbitration”.[44] Additionally, as stated by Stephen Wilske, there is an clear gap in both academic and practical discussions of the topic, “as well as insufficient attention paid to the role of arbitral institutions in keeping arbitration free from these unwelcome issues”.[45] So, the lack of a regulatory regime as we have in arbitral practice, creates significant discrepancies as to their structures and governs, which might lead to serious consequences, especially regarding sensitive topics like corruption.
Arbitral institutions have started to realize the impact of corruption on its activities and that more concrete action is necessary in order to tackle the problem in the future. A lot more could be done, especially considering that the great majority of arbitrators surveyed consider arbitral institutions as the most influential for the future evolution of international arbitration.[46] One of the measures suggested by Stephan Wilske is the creation of a mandatory Compliance Program, in which a “wannabe arbitrator [would] go through a ten-minute awareness program on corruption, money laundering, etc. led by an arbitral institution prior to being appointed by said arbitral institution. Such mandatory compliance programs for arbitrators could promote awareness about those relevant issues, as well as provide some survival guidelines that outline what to do when confronted with instances of fraud or corruption.”[47]
Another suggestion promoted by Stephan Wilske would be the creation of a “Corruption Ombudsman” that would work, as in many industries, as an advisor “to assist parties and arbitrators by simply informing them about applicable law relating to corruption, precedent from the arbitral institution, and certain guidelines and to-do-lists.”[48] The advantage of such measure is the fact that this could be done without or with very little changing in the legal framework of an arbitral institution, and it “could even become a selling point for arbitral institutions, who can advertise themselves to ‘honest businesses’ in the worldwide competition for arbitration cases.”[49]
Also, according to Alexis Mourre, “[t]here is now global competition between arbitral marketplaces, one of the effects of which is to encourage the creation of local arbitration in order to enhance the profile and attractiveness of each country. And to a certain extent, this proliferation of arbitral centers also results in more rule-making, because the creation of rules is a marker of prestige and a tool of communication.”[50] So, Brazilian regional arbitral institutions should have an advantage on this sense as long as they start working on the creation of rules and guidance that deals with corruption. They should engage in a horizontal mode of production of norms characterized as a flexible, dynamic and decentralized system of rule-making made by arbitral institutions. Rules that have an utilitarian nature and low normativity that will serve in the special interest of the arbitral community. In those type of rules it is included soft law, best practices, institutional rules, and governance rules.[51] Some of these rules and guidelines might be organized by sector (e.g., Oil & Gas)[52] or by substantive matters, like, for example, to reach a consensus on how best to arbitrate matters of corruption.[53]
Thus, such norms created by arbitral institutions cannot be enforced through public force, but they can generate a sense of moral obligation that might become a great tool able to contribute to the harmonization and unification of standards applied in the arbitration field, as well as a solution to a controversial question, in which corruption totally fits. As Gabrielle Kaufmann-Kohler states: “through a process of intellectual cross-fertilization, these actors play a dominant role in shaping the transnational consensus on arbitration law and practice.”[54] So, there is a compelling reason for regional arbitral institutions in Brazil to start this process of codification of rules regarding corruption, in order to contribute to the stability of arbitration as an autonomous and legitimate global system of justice.
4. Implications
Given the current political scenario in which Brazil is currently inserted, the study and analysis of corruption and arbitration is becoming increasingly necessary. As described here, corruption schemes are being unveiled and punished in a more assiduous way, and corruption scandals involving state-owned companies, such as Petrobras, as well as those related to the Public Administration are not uncommon. It is also noted that there are several incentives for the Public Administration to break down barriers and prejudices against arbitration, which makes it to become a more frequent party to be found in arbitral proceedings.
As mentioned before, arbitral institutions did not receive this name by chance. Their role, as any other institution in the world, is to create expected behavior which gives society prediction, allowing the arbitration community to understand what is good and bad behavior. Arbitral institutions must in all respects act as the guardian of the arbitral process in order to ensure the predictability of its procedure. Thus, Brazilian regional arbitral institutions need to be prepared to guard and guide arbitration users in sensitive issues like corruption. It is necessary that they start a zero-tolerance approach against corruption, by enacting good and modern guidelines that would work as a compliance system in this regard. However, this only can be achieved by having not a competitive, but a cooperative behavior with the arbitral community and well-established arbitral institutions. In the long run, a respectable and good reputation will be a more valuable asset than merely administering disputes involving corrupt corporations or state companies.
Therefore, there is a real need for the regional arbitral institutions in Brazil to become aware of this present setting, and they should not wait for international solutions in order to be able to provide effective response to corrupt matters. Brazilian regional arbitral institutions are capable to take into account the new trends and developments of the field, and continue strengthening the idea that International Arbitration is not a safe harbor for corruption, as well as what are their future challenges on protecting the legitimacy of the arbitral process while navigating in unprecedented times like these.
[1] The most comprehensive one is the United Nations Convention against Corruption, Oct. 31, 2003, 2349 U.N.T.S. 41, (UNCAC), https://www.unodc.org/unodc/en/treaties/CAC/ (last visited Apr. 30, 2020).
[2] Bribe Payers Index 2011, Transparency International, https://www.transparency.org/whatwedo/publication/bpi_2011 (last visited Apr. 30, 2020) – The Oil and Gas sector was in the bottom 25% of 19 sectors.
[3] International Arbitration Survey: The Evolution of International Arbitration, White & Case and Queen Mary University of London, at 7, (2018), https://www.whitecase.com/sites/whitecase/files/files/download/publications/2018-international-arbitration-survey.pdf
[4] Richard Cassin, Petrobras reaches $1.78 billion FCPA resolution, The FCPA blog (Sep. 27, 2018), https://fcpablog.com/2018/09/27/petrobras-reaches-178-billion-fcpa-resolution/ (last visited Apr. 30, 2020).
[5] US Department of Justice, Petrobras Non-Prosecution Agreement (Sep. 26, 2018), https://www.justice.gov/opa/press-release/file/1096706/download, (last visited Apr. 30, 2020).
[6]SEC Press Release, Petrobras Reaches with SEC for Misleading Investors (Sep. 27, 2018), https://www.sec.gov/news/press-release/2018-215, (last visited Apr. 30, 2020).
[7] See Jonathan C. Hamilton, Three Decades of Latin American Commercial Arbitration, 30 U. Pa. J. Int’lL., 2009, at. 1099.
[8] Brazilian Arbitration Act, Federal Law n. 9.307 of Sept. 23, 1996, [D.O.U 24.09.1996]
[9] Domitille Baizeau & Tessa Hayes, The Arbitral Tribunal’s Duty and Power to Address Corruption Sua Sponte, in Andrea Menaker (ed), International Arbitration and the Rule of Law: Contribution and Conformity, ICCA Congress Series, Volume 19 (\ Kluwer Law International; Kluwer Law International 2017), at 248.
[10] Douglass C. North, Institutions, Institutional Changes and Economic Performance, Cambridge University Press (1st. ed., 1990) at 3.
[11] Hanna Kassab & Jonathan D. Rosen, Corruption, Institutions, and Fragile States, Palgrave Macmillan, US (1st. ed, 2018) at 25.
[12] See supra note 11, at 25.
[13] Nassib D. Ziadé, Reflections on the Role of Institutional Arbitration Between the Present and the Future, Arbitration International, Vol. 25, N. 3, LCIA (2009), at 429.
[14] Alexis Mourre, Arbitral institutions and Professional Organizations as Lawmakers, in Jean Engelmayer Kalicki and Mohamed Abdel Raouf (eds), Evolution and Adaptation: The Future of International Arbitration, ICCA Congress Series, Volume 20, Kluwer (2019), at 88.
[15] See 2018 International Arbitration Survey, supra note 3, 79% of the respondents’ arbitrations over the past five years were institutional rather than ad hoc.
[16] See Mourre, supra note 14, at 89.
[17] Stephen Wilske, International Arbitration and Its Dark Sides, in Particular Corruption: What Arbitral Institutions Could or Should Do to Tackle Such Unwelcome Issues, 12(2) Contemp. Asia Arb. J 147 (2019) at 151.
[18] See Catherine A. Rogers, When Arbitrators and Institutions Clash, or the Strange Case of Getma v. Guinea, Kluwer Arbitration. Blog (May 12, 2016), http://arbitrationblog.kluwerarbitration.com/2016/05/12/when-arbitrators-and-institutions-clash-or-the-strange-case-of-getma-v-guinea/?doing_wp_cron=1589990472.6291480064392089843750
[19] Duarte G. Henriques, The Role of Good Faith in Arbitration: Are Arbitrators and Arbitral Institutions Bound to Act in Good Faith?, 33(3) ASA BULL. (2015) at 514, 528.
[20] See Jonathan C. Hamilton, The Era of Latin American Arbitral Institutions, Summary of the ITA Inaugural Survey of Latin American Arbitral Institutions, Institute for Transnational Arbitration (2011), https://www.cailaw.org/media/files/ITA/Publications/arbitral-institutions-guide-dec.pdf
[21] CONIMA, Conselho Nacional das Instituições de Mediação e Arbitragem, https://conima.org.br/institucional/instituicoes/ (last visited Apr. 30, 2020).
[22] Jonathan C. Hamilton, et al., Latin American Arbitration: Navigating the Pandemic, White & Case Publications (Apr, 2020) at 1, https://www.whitecase.com/publications/alert/latin-american-arbitration-navigating-pandemic .
[23] Leaders League Ranking 2020, https://www.leadersleague.com/en/rankings/dispute-resolution-ranking-2020-arbitration-centers-brazil (last visited Apr. 30, 2020).
[24] General Statistics, CAM-CCBC (2018), https://ccbc.org.br/cam-ccbc-centro-arbitragem-mediacao/en/about-the-cam/general-statistics/, (last visited Apr. 30, 2020).
[25] Jonathan C. Hamilton, et al., Arbitrator Challenges in Latin America, Challenges and Recusals of Judges and Arbitrators in International Courts and Tribunals, Chiara Giorgetti ed., Brill, Nijhoff (2015) at 411.
[26] Code of Ethics, CAM-CCBC (Apr. 28, 2016), https://ccbc.org.br/cam-ccbc-centro-arbitragem-mediacao/en/arbitration/code-of-ethics/ (last visited Apr. 30, 2020).
[27] Article 5.4 of the CAM-CCBC’s Rules of Sept. 1, 2011 (last amendment Apr. 28, 2016), and the CAM-CCBC’s Administrative Resolution No. 25/2017 of Apr. 19, 2017.
[28] EDF (Services) Limited v. Romania, ICSID case No. ARB/05/13, Award, ¶ . 221 (Oct. 8, 2009). In this case the tribunal noted that “corruption must be proven and it is notoriously difficult to prove since, typically, there is little or no physical evidence”.
[29] See International Arbitration Survey, supra note 3, at 7.
[30] Nassib Ziadé, Chapter 7: Addressing Allegations and Findings of Corruption, in Domitille Biazeau and Richard Krendler (eds), Addressing Issues of Corruption in Commercial and Investment Arbitration, Dossiers of the ICC Institute of World Business Law, Volume 13, Kluwer, ICC (2015) at 118.
[31] Vladimir Khvalei, Using Red Flags to Prevent Arbitration from Becoming a Safe Harbor for Contracts that disguise Corruption, 24 ICC International Court of Arbitration BulletinSpecial Supplement, (2013), at 15-16, http://ccsi.columbia.edu/files/2017/09/ICC-International-Court-of-Arbitration-Bulletin-Vladimir-Khvalei.pdf
[32] See Ziadé, supra note 30, at 126-127.
[33] Id., at p. 127.
[34] Emmanuel Gaillard, The Emergence of Transnational Responses to Corruption in International Arbitration, 35(1) ARB. INT’L 1,19 (2019).
[35] See Wilske, supra note 17, at 151.
[36] Id., p. 159.
[37] Tackling Corruption in Arbitration, ICC Bulletin, (2014), https://2go.iccwbo.org/tackling-corruption-in-arbitration.html (last visited Apr. 30, 2020).
[38] ICC Rules of Arbitration of Mar. 1, 2017 article 25, https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/#article_25 (last visited Apr. 30, 2020).
[39] ICC Commission on Arbitration Task Force – The Task Force will benefit from close collaboration with the ICC Corporate Responsibility and Anti-Corruption Commission, as well as the IBA and the OECD, represented by Julie Bedard (Co-Chair of the IBA Arbitration Committee) and Leah Amber (Legal Analyst at the Anti-Corruption Division of the OECD) – https://iccwbo.org/leadership/#leadershipadr (last visited Apr. 30, 2020).
[40] Mark Pieth & Katherin Betz, Corruption and Money-Laundering in International Arbitration – A Toolkit for Arbitrators, Basel Inst. Governance 19 (2019), https://www.baselgovernance.org/publications/corruption-and-money-laundering-international-arbitration-toolkit-arbitrators (last visited Apr. 30, 2020).
[41] See Ziadé, supra note 13, at 427. This text is based on remarks made at the Conference organized by the Cairo Regional Centre for International Commercial Arbitration in March, 2009 to celebrate its 13th anniversary.
[42] See Ziadé, supra note 13, at 430.
[43] Jan Paulsson, Moral Hazard in International Dispute Resolution, 25 ICSID Review Foreign Investment Law Journal, issue 2, (Oct. 1, 2010), at 339.
[44] See Mourre, supra note 14, at 90.
[45] See Wilske, supra note 17, at 150.
[46] See 2018 International Arbitration Survey, supra note 3. It reports that 80% of respondents consider arbitral institutions to be best placed to influence the future evolution of international arbitration.
[47] See Wilske, supra note 17, at 165.
[48] Ibid.
[49] Id, p. 166. See also Stephen Wilske, The Global Competition for the ‘Best’ Place of Arbitration for International Arbitrations – A More or Less Biased Review of the Usual Suspects and Recent Newcomers, 1(1) Contemp. Asia Arb. J. 21 (2018).
[50] See Mourre, supra note 14, at 91.
[51] See Mourre, supra note 14, at 95.
[52] For example, in 2017 the Association of International Petroleum Negotiators (“AIPN”) International Dispute Resolution Agreement has established several model clauses that are adapted to Oil & Gas disputes.
[53] For example, ICC Rules on Combating Corruption, (2011); OECD Good Practice Guidance on Internal Controls, Ethics and Compliance, (Feb. 18, 2010).
[54] Gabrielle Kauffman-Kohler, Soft Law in International Arbitration: Codification and Normativity, Journal of International Dispute Settlement (Aug. 16, 2010), at 13, https://lk-k.com/wp-content/uploads/Soft-Law-in-International-Arbitration-Codification-and-Normativity.pdf.
