On 14 April 2019, KNOETZL partner Florian Haugeneder spoke at the 7th Bergsten Lecture held at the University of Vienna. The annual lecture delivered by Carolyn Lamm discussed issues of corruption and illegality in international arbitration.
Following Carolyn Lamm’s lecture Florian Haugeneder addressed three key issues: (1) the standard of proof applied by arbitral tribunals when confronted with issues of corruption; (2) the divergence in approaches of tribunals regarding the specific evidentiary threshold for proving corruption and; (3) the tribunal’s power to investigate allegations of corruption and illegality on its own motion.
Florian concluded that issues of corruption go to the heart of public policy. Where the allegation of corruption is established by prima facie evidence, it is the tribunal’s duty to endeavour to determine the actual facts, and not only to rely on considerations of burden of proof. The standard of proof for corruption and illegality should be the same as for all factual allegations. In evaluating the evidence, international tribunals should adopt a realistic approach to evidentiary thresholds and abandon requirements that make it all but impossible to establish illegality or corruption.
Professor Andrea Kay Bjorklund (McGill University, Montreal) concluded the lecture by raising contentious issues pertaining to the “unclean hands doctrine” and the attribution of corrupt acts of state representatives under the law of State Responsibility.
More than 200 participants from numerous jurisdictions attended the lecture jointly hosted by the University of Vienna and the Austrian Arbitration Association (Arb|Aut).