The Arbitrator’s Role in Addressing the Problem of Corruption in the International Trading Community
Dr. Mahmoud Mahmoud Moghrabi
Assistant Professor of Civil Law – Kuwait International Law School
One of the most negative features of the present era, the era of globalization in its comprehensive and broad sense, is the growing phenomenon of corruption to the extent that it has become truly an institutional and structural disaster and not just a dilemma related to transactions in the life of societies that impede their development. In order to address this phenomenon, the efforts of the national and international legal community to consolidate a strategic approach to unify visions around a set of principles and standards have been combined to reduce the possibilities of involvement in corruption, in case it proved difficult to eliminate. In the context of the “harmonization” and rationalization of the trade and business environment – which is inseparable from arbitration, its natural jurisdiction – a highly accurate and sensitive challenge has arisen with respect to the acute lack of solutions to be adopted by the arbitrator against corruption in the world of arbitration in general and in the international trading community in particular.
Therefore, this research seeks to highlight the enormity of the arbitrator distancing himself from dealing with conflicted realties on the suspicion of corruption. As well as provide an accurate diagnosis of the difficulty of his role on the one hand in investigating or verifying corruption, cooperating with the relevant official authorities, imposing appropriate penal measures or the enforcement of the relevant arbitral decisions and their compatibility with the transnational general regime. This is dealt with through two main principles; the first deals with the gradual shift in the arbitral jurisdictions’ approach to the disputes of corruption, the second points out the features of the legality of the jurisdiction of the arbitration court.
To this end, we have adopted a comprehensive analytical and comparative critical methodology. The study, then, concludes with a number of suggestions that we consider useful means to overcome the problems and dilemmas encountered in the fight against corruption in the world of arbitration. This is preceded by the direct recognition of the effective and pivotal role of the arbitrator on the one hand, and the need to open the doors for the legalization of the arbitral jurisdictions’ decisions in this regard, on the other hand, as well as the adoption of a special system of evidence consistent with the privacy of disputes contaminated with corruption in the world of arbitration.
Keywords: principle of specialization, jurisdiction, principle of independence, arbitral function, automatic investigation, proof of corruption.