Competence-Competence in the Face of Illegality in Contracts and Arbitration Agreements

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Competence-competence and corruption have, for different reasons, been mainstays of international dispute resolution thought and practice for the longest time. In the last few years, their intersection has become increasingly important and problematic. These lectures seek to define the problem and to provide acceptable solutions where possible. They attempt to derive support from both a stringent dogmatic approach and pragmatic attention to real-life expectations and conduct. More so than in other areas of private international law, the intersection between the powers of the arbitrator and the illegality of the subject matter or the parties’ conduct poses a particular challenge. That challenge is to postulate proper solutions under the law, including principles of transnational or international law, to conduct which can take on a multiplicity of appearances owing to conflicting cultural understandings of what is and is not legal in commercial life. The statement that bribery and corruption offend transnational or international public policy does not relieve the arbitrator from the burden of scrutinizing that statement doctrinally and exploring its consequences in a period of ever-increasing globalization of economic activity and investment.

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Richard Kreindler is one of the world’s leading specialists in the areas of international arbitration and transnational litigation. He is both a professor of law and a full-time advocate, acting as counsel, arbitrator and expert in major commercial and investment disputes throughout the world. He is the author of numerous major publications on international commercial and investment arbitration as well as cross-border litigation.
Excerpt of table of contents:
Introduction;
Chapter I. Definition of the Subject;
Chapter II. The Meaning of “Illegality”;
Chapter III. The Context of Private International Law Versus Public International Law;
Chapter IV. The Question of the Applicable Law or Laws;
Chapter V. Corruption Allegations, Suspicions, Findings and Admissions;
Chapter VI. The Burden of Proof and the Standard of Proof of Illegality;
Chapter VII. Attribution of Illegal Actions and Knowledge of the State;
Chapter VIII. The Rights and Duties of the Arbitrator;
Chapter IX. Legal Consequences of a Finding or Admission of Corruption;
Chapter X. Justifications, Excuses and Defences for Illegal Conduct;
Chapter XI. Standards of Review of Arbitral Awards in the Corruption Context;
Bibliography; About the Author; Biographical Note; Principal Publications.