CHAPTER 9 PROVING CORRUPTION IN INTERNATIONAL ARBITRATION: A BALANCED STANDARD FOR THE REAL WORLD

• Jurisdiction: United States

International Energy and Minerals Arbitration
(Sep 2013)
CHAPTER 9
PROVING CORRUPTION IN INTERNATIONAL ARBITRATION: A BALANCED STANDARD FOR THE REAL WORLD
Constantine Partasides
Partner, Freshfields Bruckhaus Deringer LLP
London, UK

CONSTANTINE PARTASIDES is a partner at Freshfields Bruckhaus Deringer, and heads the International Arbitration Group in London. He has acted as counsel and arbitrator in close to 100 ad hoc and institutional arbitrations. Constantine was named as one of the "top 20" individuals in the world of arbitration in the 2011 and 2012 "Who's Who" of Commercial Arbitration. He is a co-author of the fourth and fifth editions of the leading textbook on international arbitration Redfern and Hunter on International Arbitration, and is a solicitor-advocate (Higher Courts Civil). Constantine was educated at King's College, London and Cambridge University.

PROVING CORRUPTION IN INTERNATIONAL ARBITRATION: A BALANCED STANDARD FOR THE REAL WORLD

Constantine Partasictes

17 September 2013

Freshfields Bruckhaus Deringer

The evidence of Claimant's witness - Mr Nassir Ibrahim Ali

"...protocol in Kenya required that I should in addition make a "personal donation" to President Moi. ... X advised me that the appropriate donation ... was US$2 million. I was further advised by him that the donation should be in cash.

...

I brought [part of the cash in Kenyan shillings] to my meeting with President Moi in a brown briefcase. When we entered the room where the President received us, [I] put the briefcase by the wall and left it there. After the meeting [I] collected the briefcase from where [I] had left it. On the departing journey I looked in the briefcase and saw that the money had been replaced by fresh com.

I felt uncomfortable with the Idea of handing over this "personal donation" which appeared to me to be a bribe. However, this was the President, and I was given to understand that ... I didn't have a choice if I wanted my Investment contract"

World Duty Free Company Ltd v. Republic of Kenya

(ICSID Case No. Arb/00/7)

Award, 4 October 2006, paragraph 130

[Page 9-2]

Question: How can our process ensure that it is equal to the ingenuity of those that conceal corruption?

Answer: ?

The members of the Arbitral Tribunal do not live In an Ivory tower. Nor do they view the arbitral process as one which operates in a vacuum, divorced from reality. ... The arbitrators believe that cronyism and other forms of abuse of public trust do...