В статье рассматриваются вопросы, связанные с коррупцией в коммерческой деятельности, в особенности в странах бывшего Советского Союза, в частности Содружества Независимых Государств. Особенное внимание уделяется автором отношению действительности-недействительности арбитражной оговорки при установленной недействительности контракта, содержащего ее.
Corruption in commerce, particularly in commercial arbitration, remains a well-known problem in the whole world, but, especially, it is of interest in the former Soviet Union (SU) countries, today’s CIS states. The SU legacy includes not only the essential features of a socialist state, but also the attendant social ills, among which bribe and corruption are the prevailing ones.
The level of corruption and bribe differs from state to state, which is shown by the Corruption Perception Index 2011 (conducted by the Transparency International). Whereas Belarus and Russia share the place 143 (from among 183) with the corruption index 2.4 (out of 10.0), Ukraine reserves the place 152 with the index 2.3. These are the general indicators of the corruption degree, but they certainly reflect the nowadays situation in every area of activity in each state.
Regarding the major treaties, recognized by many countries world-wide, that deal with the issue of corruption, the following three shall be distinguished: United Nations Convention against Corruption, OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Council of Europe Criminal Law Convention on Corruption. If the first convention was ratified by Belarus (2005), Russia (2006) and Ukraine (2009), the OECD Convention – only by Russia in 2012. The third convention was neither ratified, nor signed by either of three states.
Corruption and, as the result, lack of trust in national dispute settlement, drive domestic and foreign companies (operating in the CIS countries) to seek justice in arbitration abroad. However, no-one is secure from the corruption exertion even there.
One should consider three different situations, when the issue of corruption in commercial arbitration may arise:
1) at the primary tribunal level;
2) after the primary tribunal level in the event of challenging the award;
3) during the review of the arbitral award by national courts.
It is important to address (1) tribunal’s right to investigate corruption sua sponte (lat., “on its own accord”) and (2) the legal consequences of a finding of corruption for the arbitration proceedings.
(1) Today, it is indeed an issue, whether the tribunal exceeds its power (mandate, competence) by examining on its own initiative the question of bribe or corruption affecting the main agreement. This issue should be examined within one of the principal pillars of arbitration – the principle of competence-competence. The common approach is that there is no excess of authority if the corruption matter is relevant to the respective dispute resolution. However, there is no precise answer to this question. As Richard Kreindler observes, “illegality contentions… even if initiated by the tribunal itself, should normally be deemed to ‘fall within the terms of the submission to arbitration’…”. But he emphasises on the importance of the relevance of the illegality matter to the respective claims. [Richard Kreindler, “Aspects of illegality in formation and performance of contracts” (16th ICCA Congress, May 2002), “Is the Arbitrator Obligated to Denounce Money Laundering, Corruption of Officials, etc.? The Arbitrator as Accomplice – Sham Proceedings and the Trap of the Consent Award” (CGD Working Group on Corrupt Payments, Washington, February 2007)]
Nevertheless, availability of evidence is not the only pre-condition to such investigation. According to Michael Hwang S.C. and Kevin Lim, proportionality is the other factor which is to consider before examining the corruption matters. [Michael Hwang (with co-author Kevin Lim), “Corruption in Arbitration – Law and Reality” (expanded version of Herbert Smith-SMU Asian Arbitration Lecture, 4 August 2011, Singapore; forthcoming AIAJ) by Mr. Michael Hwang, SC ]
The tribunals shall always take into account the interrelation of evidence to be procured from the impugned party and the degree of the tribunal’s suspicion as to the illegality respectively.
It means, the investigation should be done as discreet and respectful as possible in order to facilitate the proceedings.
(2) The earlier arbitration practice evidences the following: If the illegality of the contract is proved, then it is void ab initio, i.e. the arbitration clause is ineffective. This position was strongly supported by Judge Lagergren in his sole arbitration award in the ICC Case No. 1110 in 1963, where he stated, that an arbitral tribunal shall have no jurisdiction where there is prima facie case of corruption. For some time these findings were referred to by other arbitrators in order to underline, that corruption claims were not arbitrable. Yet it is no more generally accepted. And to demonstrate it one should refer to such well-known cases, as Nat’l Power Corp. v. Westinghouse, Westacre Investments Inc. v. Jugoimport-SPDR Co. Ltd., ICC Case No. 5622 (1988), ICC Case No. 6474 (1992) and others.
The common rule in the CIS states is of particular interest, as though usually contracts procured by bribery are regarded as void, this does not automatically affect the arbitration clause. Under laws of CIS jurisdictions, which are in line with the internationally recognized standards, an arbitration agreement is separate and independent from the rest of the agreement and remains valid even in the event the arbitral tribunal decides that the main contract is void (because of bribery). It can be well demonstrated by the case Fiona Trust & Holding Corp. v. Privalov (involving Russian parties, 2007), where the arbitration agreement was considered as a “distinct agreement” and, thus, not invalid. This proves one more time, that Mr. Lagergren’s approach is no more commonly recognized.
To conclude, one should emphasize one more time that a tribunal may inquire the corruption matter on its own accord. However, the arbitral tribunals shall always exercise discretion and neither examine corruption issues without prima facie evidence, nor close their eyes to all evidence of corruption on the basis of non-burdening the parties with additional expenses. Even if there is evidence of corruption or bribe and the contract is declared invalid, the arbitrators can still exercise their jurisdiction, as the arbitration clause shall be viewed separately from the main contract.
Автор: Polina Gryganska
Источник: The Association for International Arbitration Newsletter June 2012, р. 4 – 5.