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Arbitration and Crime

2010; RELX Group (Netherlands); Linguagem: Inglês

1556-5068

Dragor Hiber, Vladimir Pavić,

International Arbitration and Investment Law

Arbitration is usually regarded as a domain exclusively reserved for private law. Inevitably, however, certain criminal matters and allegations might creep into arbitral proceedings. The dispute itself could be fictitious, a screen for money laundering, or the underlying purpose of alleged consultancy might be bribery. Testimony or expertise offered before the tribunal might be false. In such cases, arbitrators face two decisions - whether to address the criminal matters or turn a blind eye to them, and whether their duty to report, if any, overrides principle of confidentiality of arbitral proceedings. It is submitted that arbitrators are a part of judicial system and that they not only fail to qualify for any privilege exception. When deciding issues of bribery, however, they are still faced with difficult issues of burden of proof and law applicable to illegality. The task of deciding on the merits becomes particularly difficult if they do not take the jurisdictional way to terminate the proceedings. In such case, it might prove fairly difficult to avoid unjust solutions.