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Philadelphia: April 9, 2015
Addressing Corruption and International Arbitration


POST-EVENT REPORT

By Alexandra Theobald[1]

On Thursday, April 9, 2015, Young ICCA in cooperation with the Penn Law International Arbitration Association organized a panel discussion at the University of Pennsylvania Law School in Philadelphia to discuss emerging issues in corruption and arbitration. Approximately 50 students attended.

The distinguished panel moderated by Young ICCA Co-Chair Mr. Damien Nyer (Associate, White & Case) consisted of Ms. Dana MacGrath (Counsel, Sidley Austin), Mr. Tom Walsh (Special Counsel, Sullivan & Cromwell), and Mr. Viren Mascarenhas (Counsel, King & Spalding).

After a brief introduction by Mr. Damien Nyer, the panel began the discussion by describing various ways in which the issue of corruption comes up in international arbitration. Commercial contracts, public tender and foreign investment contracts were discussed. The panelists mentioned that different cultural approaches to corruption may affect the proceeding, including influencing the parties’ choice of arbitrator. While some parties may want to choose to arbitrate in a jurisdiction that takes a hard line against corruption, others may prefer a more lenient jurisdiction. It was noted that it would be unethical for an arbitration to be used to enforce an illegal contract.

The next section of the presentation addressed the role of the arbitral tribunal. The panelists discussed the limits of arbitrator jurisdiction, and what options dissatisfied parties have to seek redress in court. This was followed by a discussion of whether arbitration is the proper forum to address issues of corruption, given the limited ability to obtain discovery.

Lastly, the panelists discussed specific issues they had seen in their practices. Ms. Dana McGrath addressed the various defenses a party to a commercial arbitration might raise with respect to allegations of corruption. Mr. Tom Walsh discussed the added challenges presented by sovereign immunity when arbitrating foreign investment disputes. Mr. Viren Mascarenhas elaborated on investment treaty arbitration.

The discussion with a Q&A session where the students asked thoughtful and enthusiastic questions. An international-themed luncheon was provided.


[1] Alexandra Theobald graduated from the University of Pennsylvania Law School. Her admission to the bar of the State of New York is pending. Alexandra is an associate at Cleary Gottlieb Steen & Hamilton LLP, where she practices international litigation and arbitration.