Congratulations to Dr. Sothie Keo, Adjunct AUPP Law Professor, on the publication of his recent article, ‘International Investment Arbitration and Corruption: The Arbitrability of Corruption and its Remedy,’ in the New York International Law Review, a publication of the International Law and Practice Section of the New York State Bar Association.
Dr. Keo’s article analyzes the nature of arbitrating corruption and its possible remedies. Under the doctrine of ‘unclean hands’ or in pari delicto, investor-State tribunals have leaned towards dismissing cases that are tainted with corruption. As a result, corruption has emerged as a form of defense used by respondents. The article discusses how outright dismissals of cases tainted with corruption can sometimes lead to unjustly enriching the respondents.
The article instead proposes a balancing of factors to determine the culpability of each party in order to issue an adequate remedy. Depending on the culpability of each party, in certain cases it may be more just for the tribunal to order a repayment of the value of the investment as well as the bribery money, in other cases, the repayment of only the bribery money, and when both parties are equally at fault or the claimant is more at fault, then dismissal.