* Special thanks to Tzvi Mintz and Matt Rudolph for their invaluable comments, and to Yonatan Horowitz.
With a few exceptions, the status of the cleanhandsdoctrine under international law, pursuant to which ‘a claimant’s involvement in activity unlawful under either
The cleanhandsdoctrine (or ‘unclean’ hands) is often defined as ‘he-she who comes into equity must come with clean hands’. The principle is also sometimes expressed in a number of Latin maxims, including ex delicto non oritur actio (‘an unlawful act cannot serve as the
This article examines the controversial question of the status of the cleanhandsdoctrine in investment arbitration and how tribunals have analyzed this concept. The cleanhandsdoctrine (‘[H]e who comes into equity must come with clean hands’, also sometimes referred to as the principle of
second noteworthy point is the Tribunal’s consideration and application of general principles of law, particularly its rejection of the ‘cleanhands’ doctrine (para. 1362). This may be questioned; is the rule against profiting from one’s wrongs, which is analogous to the ‘cleanhands’ doctrine, not a
majority of the Tribunal declared the claim inadmissible based on the ‘cleanhands’ doctrine, and declined to award damages for the FET violation (paras. 645–648, 654 and n 217).
Article 9 of the OIC Agreement also provided the basis for a counterclaim, with Indonesia alleging fraud and seeking to
hands truly exists under international law is controversial. 69 While the International Law Commission (“ILC”) decided that the cleanhandsdoctrine should not apply in the diplomatic protection context, the ILC Special Rapporteur Dugard nevertheless suggested that the doctrine is relevant in other
the sixth report of the Special Rapporteur, C.J.R. Dugard. The Commission's work during this session was devoted chiefly to a sin- gle question: whether the cleanhandsdoctrine is sufficiently linked to diplomatic protection to be included in the draft articles. According to this doctrine, a State
discretion to decide the order in which to take them up. 12 In addition, the United States invoked the cleanhandsdoctrine, arguing that Iran’s unlawful attacks on US and other neutral ships in the Gulf precluded it from obtaining relief from the Court. 13 In its Reply (1997) and to its final submissions
handsdoctrine did not apply “to the extent that such a doctrine may exist in international law” (a matter on which the Tribu- nal carefully examined the relevant evidence). 110 First, Guyana was not seek- ing a remedy of the type to which the cleanhandsdoctrine applied, “even if it were recognised as
owed only to the authorizing State, not to the home State of the investor. On the other hand, if the investor’s home State is the authorizing State, then it is not clear whether the claim could be precluded on the ground of the cleanhandsdoctrine or the principle of inadimplenti non est adimplendum