Alternative dispute resolution has been hailed by many people for the crucial role it plays in finding solutions to disputes outside the courtroom. By definition, arbitration is an alternative dispute resolution technique that takes place out of the legal courts. In this kind of dispute resolution, a third party reviews the facts and evidence of two parties and imposes a legally binding decision. The fact that the parties to a dispute have total control over the process makes it more admirable as compared to the judicial process. The parties have the ability to make their own schedules and choose the arbitrators. For a number of years, arbitration has been used to solve disputes between two parties. In the modern practice, the process of arbitration has found massive application when it comes to cases dealing with corruption, fraud and money laundering. The application of arbitration in the mentioned cases comes about when the parties who have been involved agree to settle their disputes out of the courts to avoid possible lengthy court processes. For instance, in the cases of money laundering and fraud, the aggrieved party presents his evidence before an arbitrator who reviews it and instructs the accused to make the necessary compensations to the aggrieved individual. This way, the dispute is settled without the need to subject it to lengthy court processes whose final verdict might not be in favor of either party. One crucial thing to note is the fact that the standard of proof in arbitration matters is flexible when compared to that in criminal cases and civil matters. This paper aims to explain the how arbitration relates to corruption, fraud and money laundering. It will be subdivided into several distinct sections. The first one is the introduction part that introduces the topic and makes general definitions. This will be followed by a conclusive literature review of sources that touch on the subject. The next section will be research design, which will be followed by the research findings. Finally, there will be a conclusion that harmonizes all the findings of the research.
Arbitration, Money laundering, fraud, corruption, contracts
Several mechanisms are used to solve disputes in the modern society. One of such mechanisms that have been consistently used is that of arbitration. Most alternative dispute resolution methods emphasize on finding a viable solution outside the court In essence, the parties to the dispute agree on some personalities or a group of individuals to help them make decisions. When such is the case, such parties agree to be bound by the decisions that may be made by the arbitrators/arbiters. The parties present their evidence on a given dispute to a third party, who in turn makes a decision that is binding. Arbitrators ought to be neutral so as to give a verdict that does not favor any party. Neutrality by the arbitrators is crucial if the decision is to be respected. In most cases, arbitration is employed in disputes that are related to commercials. International commercial transactions have in most cases been solved using the arbitration method. In other cases, arbitration is used in employment and consumer matters. Arbitration can either mandatory or voluntary. Mandatory arbitration, to a large extent can only be employed when the statutes provide for it. It can also be employed in case the two parties to a dispute had agreed to employ arbitration as a mechanism to employ in order to solve disputes. Important to note is the fact that the adjudicator ought to be impartial because his decision is binding. In most cases, there are few rights to appeal against the decree given. Its importance is that it saves time as the parties do not have to depend on the tiresome judicial processes to solve a problem. To a large extent, arbitration has several advantages over the often tedious court processes. First, the parties to a dispute have the opportunity to determine how the scheduling will be. This will ensure that they suggest the time when they are free and available, unlike the courts where the judges determine everything. Another advantage is that the parties to an arbitration get the chance to choose the arbitrators. This is important in that they can look for a person they know understands the subject matter of the dispute very well. Such control given to the parties to the arbitration is likely to boost their confidence and accept the arbitrator’s verdict.
In the recent past, money laundering has hit the headlines for the amount of attention it has received. In essence, money laundering is as old as the 1920 when it was practiced by the American criminal organizations. Because of the criminal nature of the activities related to money laundering, there was a significant increase in the level of international concern in the 1980s. Several legislation have been enacted to encompass the practices of money laundering. This effectively saw an increase in the creation of both national and international legal frameworks. However, such frameworks have had a large implication on the international process of arbitration. Several acts define money laundering as the process through which ownership and true origin of the proceeds of criminal activities are hidden and disguised by criminals. The criminals do this in order to avoid conviction, prosecution and the confiscation of their funds. Arbitration has always been used in cases dealing with money laundering.
Corruption, on the other hand, is a practice that has survived throughout the human history. In order to ensure it is minimized, lawmakers have enacted several laws that are geared towards stipulating tough punishments to the offenders. Corruption, to a large extent, is defined as a transaction between a legal or natural person and an individual who is entrusted with the duty of performing a public service function in a governmental branch. For a transaction to be termed as corruption, it must involve an attempt to attain a personal benefit in exchange of an act or omission to do something that can be categorized as a public service function. Different conventions have different definitions of corruption. In the modern world, arbitration has been prominently used to solve disputes of both national and international nature in which corruption is concerned. The arbitration process has taken into account different aspects of corruption in order to ensure that solutions are met locally without essentially moving to court, which may prove to be time consuming.
Fraud refers to a deliberate deception that is practiced purposely to secure unlawful or unfair gains. Most legislation treat fraud as both a civil wrong or criminal wrong. The purpose of fraud is to defraud people of their valuables or money. However, at times, fraud involves getting benefits without depriving a person of their valuables. As such, obtaining a license through pretence or through using false statements to make the applications may qualify to be termed as fraud. There is a direct relationship between fraud and arbitration, in that the act of alleging fraud significantly affects the practice of enforcing an arbitration clause. As a result of this, arbitration plays a key role in solving matters relating to fraud.
As a mechanism of solving disputes outside the court process, international arbitration has been employed in a number of times (Atai, 2011). Money laundering cases, for instance, have been solved through employing the arbitration process. Organizations may have recourse to arbitration of an international nature when the commercial dispute is as a result of a simulation between two corporate entities that are related, but on the face value, they may seem unrelated. A good example is where a company, say x, commences a claim against company z. The claim could be fake and relies on evidence that is forged against company z. As a result of the forged evidence, company x succeeds to obtain an arbitral award against company z. Company z may be compelled to pay damages to company x, despite the fact that the arbitral award was obtained through criminal activities. International arbitration has some advantages over the judicial process. This is because the arbitration process accords the parties to the dispute a certain degree of confidentiality. Through having to control and organize where, how and when the proceeding will take place, the parties get to be in a position to feel part and parcel of the process. This is unlike the judicial processes where the judges decide everything without consulting the parties. The power that is given to the parties to appoint the arbitrators also makes it an important way through which disputes may be solved.
There have been cases in which contracts that are legitimate have ended up being arbitrated upon. Important to note is the fact that the three stages of money laundering process may involve some trade transactions that are ordinary (McDougall 2005). Transactions of this nature may give rise to commercial disputes that may be termed as being legitimate. Take for instance, person A acquires commodities in a different state using ‘unclean’ money. On acquiring the commodities, person A may pay for them at a price that is significantly higher than the market price. On the other hand, the seller, say person B, would be so eager to sell the properties at a higher price to the extent that he may become insensitive of the funds that are offered by person as payment. Person A could end up selling the properties at a local market in the price that he bought them. However, person A will not take into account the price at which he sells the price since he has high chances of accounting to the legitimate revenues.
The validity of contracts that involve money laundering has always been questioned. Arbitral tribunals have always faced challenges on what to do when a contract that is under dispute involves money laundering. A contract may involve money laundering but at the same time, valid and enforceable under the substantive law. In such cases, the arbitrational tribunal should try to refuse to effect the objectionable contract rather than turning a blind eye. This has always brought several problems as to how the arbitral tribunal should proceed (McDougall 2005).
Because money laundering is widely unaccepted, it is important to note that there is an existing legal framework against it. Arbitrators to money laundering cases ought to take into mind such frameworks whenever they have to make a decision on what to do when they are presented with money laundering dispute. As much as arbitration is an accepted alternative dispute resolution mechanism, it ought to be consistent with the existing laws. Any decision made by the arbitrators that is inconsistent with law is null and void to the extent of its ambiguity. Such a legal framework is both in the local and international arena (Casella 1992).
On the international arena, the Council of Europe gave a recommendation in 1980 which saw the international bodies give more attention to money laundering. To a large extent, international institutions tend to put much value on international cooperation because money laundering has a big effect on globalization. As a result of this, coupled by the need to curb the offence of money laundering, international institutions take two approaches to sure money laundering is curbed (Redfern & Hunter, 1987). The first approach is through criminalizing money laundering on general terms. Secondly, duties are imposed to intermediaries such as banks, lawyers and accountants to enforce the anti-money laundering rules. The essence of this is to reduce the money laundering practices in the world because of the negative impacts it has to the world.
International conventions have thoroughly addressed the issue of money laundering. For instance, the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substance was signed in Vienna. To the current day, up to 170 nations have ratified the convention. Important to note is the fact that some of the articles of the convention directly or indirectly address the issue of money laundering. For instance, Article three of the convention establishes as offences: The conversion or transfer of property knowing that such property is derived from drug trafficking offences, or from an act of participation in such offence or offences, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such an offence or offences to evade the legal consequences of his actions (Redfern & Hunter 1987).
Part II of the article seeks to establish as an offence the disguise or concealment of the true source, nature and ownership of property when one knows that the property is attained as a result of participating in drug trafficking. Further, part III seeks to make it an offence the act of acquiring, using or possessing a property when one knows that the property was acquired through an act of drug trafficking. These are some of the international legislations that deal with the offence of money laundering.
Important to note is the fact that the third article of the Vienna Convention criminalizes only money laundering as a result of drug trafficking. This makes drug trafficking the predicate offence. Although such regulation does not deal with money laundering in a direct manner, it has facilitated initiatives geared towards combating money laundering (Peterson & Gray 2003). The Palermo Convention (United Nations Convention Against Transnational Organized Crime), for instance, requires its signatories to criminalize the proceeds of serious crimes, whereby serious crimes are defined as conduct that may constitute an offence that may attract a punishment of maximum deprivation of individual liberty, or attracting more serious penalty. This definition of the serious crimes includes money laundering processes and acts.
The act of money laundering is also addressed in the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials. This Act was opened for signature in 17th Dec, 1997, and seeks to ensure that its signatories make as an offence the act of bribing public foreign officials. Another Act that directly deals with money laundering is the United Nations Convention on the Suppression of the Financing of Terrorism, which was first opened for signature in 10th Jan, 2000. To a large extent, this Act relates to the practice of financing terrorism, hence addresses money laundering directly (Peterson & Gray).
Apart from the international conventions that address the practice of money laundering, most nations have incorporated into their legal frameworks regulations that deal with money laundering. To a large extent, this is a positive step towards curbing money laundering as it complements the international bodies who seek to curb the act. In United States of America, for instance, The Money Laundering Act of 1986 aims to address the issue on money laundering. Under the Act, section 1956 makes it a crime the practice of conducting financial transactions which involve proceeds of certain activities that are unlawful, or having as their aim the intention:
i. To promote the practice of unlawful activities that are specified
ii. To disguise or conceal the benefits or proceeds of unlawful activities
iii. To avoid the requirements of transaction reporting.
Further, section 1956 of the act effectively makes it an offence the act of internationally transporting monetary instruments that are as a result of unlawful activities that are specified. Punishments for such offences are stipulated, in which offenders are imprisoned for a period of up to twenty years, or fined. The Act further, under section 1957, makes it an offence the monetary transactions that may exceed $10, 000 that may be derived from unlawful activities that are specified. The offenders who are judged according to this section are liable for ten years’ imprisonment or be fined. Further legislations in the United States of America geared to combating money laundering may include the Currency and Foreign Transactions Reporting Act that requires banks to report transactions that involve large currencies. The Annuzio-Wylie Anti-Money Laundering Act of 1992 imposes as an obligation reporting of transactions that may be seen as being suspicious. The act further obliges banks to keep the relevant records involving wire-transfers. Such Acts in the United States of America are geared towards ensuring that the practice of money laundering is reduced and curbed completely.
Corruption, on the other hand, has existed for a long time as part of human life. Despite the fact that legislators have in most countries done their best to eradicate it, the hope of completely eradicating it has vanished. Most jurisdictions define corruption differently depending on the issues they want to incorporate. However, it agrees that corruption occurs whenever there is a transaction between a person (legal/natural) and another mandated to perform a public service that involves personal benefits in return of either an act or an omission by the officer. One of the challenges that make it difficult to reduce corruption levels is the high threshold of evidence required to prove corruption charges.
Internationally, there are several instruments that deal with corruption issues. Such may include: The Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union; The Inter-American Convention Against Corruption; The Council of Europe Criminal Law Convention on Corruption; African Union Convention on Preventing and Combating Corruption; The UN Convention Against Corruption among many more others (Tupman, 1989).
Such a large number of international conventions and domestic regulations addressing the issue point out to the fact that corruption is a serious issue in the current worl and that everybody is trying their best to reduce it. Because of the big number of corruption cases, judicial litigation does not offer a sufficient mechanism to handle the corruption cases. As a result of this, arbitration has always been used as the alternative mechanism of addressing such allegations. In employing arbitration in corruption cases, the arbitrators mainly look at two things; whether the contract under discussion was null and void for reasons of corruption and whether the agency agreement is enforceable.
Most corruption cases that have been determined using arbitration involve when the host state breaches the contractual terms and obligations to the main contract, effectively depriving an investor the entire investment or a crucial part of the realizable profit. State entities have always invoked corruption as the defense against the main contract’s performance. In general terms, whenever a contract is found to have been based on corruption, it is automatically declared null and void, that is to say, its performance is cancelled. This is because of three reasons. First, a contract is rendered null and void by the application of the domestic law governing it. The ICSID tribunal of arbitration followed this principle in the case of World Duty Free Ltd v. Kenya. Both the Kenyan laws and the English laws stipulate that when a contract is facilitated by corruption, it is unenforceable. As a result of this, the arbitral tribunal ignored attempts to enforce the contract in question. Second, a contract that is induced by corruption practices is invalid according to the international public policy. If a contract is made in such a manner that it requires a party to it to perform some acts that are against the public expectations, the impact is that such contracts are unenforceable. The third reason as to why a contract may be avoided is if there is a defect in consent by the host state (McDougall 2005). When such is the case, the aggrieved party has a remedy of avoiding the contract. Defect in consent by the host state, as a means of nullifying a contract, is provided for in the Vienna Convention on the Law of Treaties, Article 50. The article stipulates that corruption is a good ground of invalidating a Treaty. In determining whether a contract between two parties of different states is void, Article 8 (2) of the Civil Law Convention on Corruption of the Council of Europe provides that the state parties to the convention ought to provide their internal laws for analysis before declaring a contract as being void.
Corruption cases have increased recently in arbitration tribunals because of a number of reasons. The chief reason for this is the need to protect investors from being induced to enter contracts that may be rendered invalid. Despite this increase, there has been only one recognized award that had corruption as its key merit when deciding on the case: World Duty Free Company Ltd v. Republic of Kenya. The facts of the case are as explained below.
The contract in question was between the Government of Kenya and the World Duty Free Company Ltd, in which the Republic of Kenya was represented by the Kenya Airports Authority. The contract regarded the construction and maintenance of the Mombasa and Nairobi airports. Allegedly, the Kenyan officials that were involved in the process of making the contract, including the president, demanded bribes from the representative of the World Duty Free. The representative paid the bribes and documented everything in the books of the company. The Republic of Kenya failed to fulfill the agreement and as a result, the World Duty Free presented an arbitration claim against the Republic of Kenya (LANDO, 1985). In her defense, the Republic of Kenya sought to avoid the contract, claiming that the contract was unenforceable since the bribes were paid to the then president of the Republic. Important to note is the fact that the contract contained a clause of arbitration that referred all the investment disputes that could arise to ICSID. As a result of this clause, the tribunal’s jurisdiction was based on the contract between the two parties, as opposed to the investment treaty. In making a decision, the tribunal sided with the Republic of Kenya, arguing that the Word Duty Free could not maintain its claim because the contract was voidable. Each party had the discretion of avoiding the contract because it was induced by corruption, and Kenya had successfully voided it. To a large extent, such a decision was based on the international public policy. It was also based on the Kenyan and English laws since they were the applicable laws to the contract in question.
Both money laundering and corruption are offences that attract major punishments if one is found to have engaged themselves in the activities. However, one question that has always arisen is as to whether an arbitration tribunal may refuse jurisdiction by claiming that a money laundering dispute is not arbitrable. In most cases, although arbitrators can make binding decisions about arbitrations, they have no authority to impose criminal sanctions against an individual or party to the arbitration (McDougall 2005). Do arbitrators have the jurisdiction to inquire into claims that are based on the illegality of the contract?
The issue as to the jurisdiction of the arbitrators to consider corruption issues was considered in a 1963 arbitral decision, in the International Chamber of Commerce by Judge Largegren. The evidence provided for consideration was that an Argentine intermediary and a British company contemplate to bribe Argentine officials. Judge Lagergren, who was the sole arbitrator, argued that he lacked the jurisdiction to decide the case. This is because the parties to the contract, by entering into an agreement that was objectionable, had forfeited their right to request for any assistance in courts or arbitral tribunals in order to settle their disputes. The Judge’s position is consistent with the public expectations because matters that deal with corruption and illegality claims are not arbitrable (Laborde 2010). This position, however, gave unnecessary favor to defendants since they would employ the tactic of alleging bribery and corruption as a delaying tactic.
In National Power Corp. v. Westinghouse, the issue as to the jurisdiction was argued further by the Swiss Federal Tribunal, giving a contrasting perspective to that of Judge Largeren. The tribunal had dismissed an appeal that had been presented by a party against an arbitral award. The major reason for the appeal was because the arbitral tribunal had held that the allegations on corruption were not proved after reviewing the evidence on record. In the case, however, The Swiss Federal Tribunal ignored and rejected the approach by Judge Lagergren, arguing that the arbitral tribunal had the required jurisdiction to inquire whether corruption acts had been committed. This approach was also employed in the case of Westacre Investments Inc. v. Jugoimport-SPDR Holding Co. Ltd. In this case, the court was faced with the uncertainty as to whether to enforce an arbitral award that had been made by ICC in Switzerland. The two companies into the disputes had allegedly entered into an agreement (consultancy in nature) whereby Westacre was to assist Jugoimport to obtain defense contracts. Because of the agreement, Westacre pursued arbitration in order to obtain payment as stipulated under the agreement. However, Jugoimport disputed the claim, its major argument being that the agreement under consideration involved a contemplation to bribe the Kuwait officials. Employing a contradictory approach to the one used by Judge Lagergren, the arbitral tribunal argued that it had the jurisdiction to handle such a matter (Laborde 2010). However, the allegations of bribery were found to be unsubstantiated. Such a development of events mans that arbitrators have the relevant jurisdictions to handle disputes that involve corruption allegations. Because of such development, the arbitral tribunals also have the jurisdiction to handle money laundering cases. In regards to the above-argued cases, arbitral tribunals have the jurisdiction to determine disputes that deal with money laundering and corruption.
Further issues may arise as to whether the arbitral tribunal should apply, in holding unenforceable or invalid contracts to be involving money laundering by applying the international public policy principle. Most national laws and international instruments consider public policy to be among the grounds of setting aside an arbitral award. In most cases, arbitrators have the discretion to depart from the substantive law’s provisions on a contract if by applying such law would be against the public policy. Whenever arbitrators go contrary to lex contractus, they ought not be restricted by domestic conceptions. They should, however, take into account the transnational public policy. As per Lagergren : It cannot be contested that there exists a general principle of law recognized by civilized nations that contracts which seriously violate bonos mores or international public policy are invalid or at least unenforceable and that they cannot be sanctioned by courts or arbitrators (McDougall 2005, p.3).
Difficulties arise, however, in determining the international public policy that should be applied by the arbitrators. It is a matter of principle that bribery and corruption are contrary to the international public policy. This was so held by the International Arbitration Committee of the International Law Association which reflected that international transactions involving bribery and corruption were outdated.
Money laundering, on the other hand, has been termed as a principle that is against the international public policy. As a result, arbitrators ought to take it into account when giving the arbitral awards. The case against money laundering is facilitated by the extensive legal framework in both the international and the national front in condemning the vice. As a result of such concerns, a number of countries have ended up criminalizing money laundering. The extensive legal framework in combating money laundering is a proof that the international community is against the practice and such conduct is objectionable. Due to the public outcry, it would be wise to treat money laundering as being against the public policy (Laborde 2010). This is despite the fact that there is no consensus that constitutes the act of money laundering as being against the public policy.
Arbitrators, in most cases, face challenges in proving corruption. This is because the threshold of proving corruption allegations is high. In proving corruption, two approaches are usually considered. The first approach is based on the traditions of the common law civil standards and the criminal law approach. In civil law, the threshold requires a ‘preponderance of evidence.’ This means that there is a higher standard required in giving evidence that is clear and convincing whenever there are allegations for fraud and corruption. In civil cases, the balance of probabilities plays a crucial role in giving a verdict on the evidence provided. Criminal proceedings involving corruption and fraud, on the other hand, require that there be a proof beyond reasonable doubt. The discretion given to the judges to determine whether the evidence given by the parties to a conflict meet the required threshold plays a crucial role in ensuring that they make verdicts without any undue pressure and influence. The seriousness of the case determines the standard of proof required in making a decision on a certain matter. This was held in the case of Bater v Bater, Where Denning LJ was of the opinion that: In civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within the standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require for itself a higher degree of probability than that which it would when ask if negligence is established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but it still does require a degree of probability that is commensurate with the occasion. Such a ruling would, no doubt, mean that corruption issues will require a less standard to be proved when the approach of civil law is employed then the probability that would be required when employing the criminal law method (McDougall 2005).
In most cases, arbitral tribunals are flexible when applying the two discussed approaches. Most published awards reveal that tribunals, in most scenarios, are reluctant to relate their findings based on the standard and burden of proof. This is because they always try to establish what the truth is by analyzing the evidence that is available. The practice has no standard formulae as a means through which it weighs the probability of facts. Most arbitral tribunals, when determining corruption and fraud disputes, do not specify the standard of proof that is required. This is very crucial in that it allows the tribunal to make decisions independently by keenly analyzing and evaluating the evidence that is provided by the parties to the conflict. Specifying the standard of proof required is likely to interfere with the decision making process since the arbitrators would have to explain the reasons as to why they make certain decisions in a certain manner (Laborde 2010).
As already argued above, in establishing whether corruption was practiced or not, the arbitral practice does not circumvent an uniform standard to be used. However, in some cases, the arbitrators draw conclusions based on treaties on investment protection. This has been the case both in commercial arbitration and investment arbitration. Such a context means that what is important is the manner that the evidence is evaluated, as opposed to the definition of a standard that will be applied in evaluating the evidence. Most awards that have applied the high standards in corruption cases have relied on this argument to reinforce the conclusions they make (Laborde 2010). Whenever the allegations of illegality or corruption fail, there is always a discussion of the evidence as to why the award was given or denied. However, where fraud and corruption have been found, the awards do not discuss the threshold of the standard of proof. This is well explained in the case of World Duty Free v Kenya, in which it can be argued that the evidence provided in the matter was beyond reasonable doubt. Such a strong evidence will most likely convince the arbitrators that any threshold as to the standard of proof could be met.
In conclusion, arbitration plays a significant role in solving disputes that may not need to be taken to courts. The control that the parties are given in choosing the arbitrators makes the practice more convenient as the parties get the opportunity to fix their ideal time for the arbitration process. Arbitration can be used to protect investors against fraudulent and corrupt practices by individuals who may be out to benefit themselves at the expense of the public policy. By being flexible in the required threshold to determine corruption, money laundering and fraud, arbitration offers the best mechanism through which disputes may be settled out of court. The jurisdiction that arbitrators have regards to determining cases dealing with money laundering and corruption cases is an added advantage.
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