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ROBERT HUNTER, HERBERT SMITH FREEHILLS LLP – LONDON & YACINE FRANCIS, ALLEN & OVERY LLP - DUBAI FRAUD IN INTERNATIONAL ARBITRATION.

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Presentation on theme: "ROBERT HUNTER, HERBERT SMITH FREEHILLS LLP – LONDON & YACINE FRANCIS, ALLEN & OVERY LLP - DUBAI FRAUD IN INTERNATIONAL ARBITRATION."— Presentation transcript:

1 ROBERT HUNTER, HERBERT SMITH FREEHILLS LLP – LONDON & YACINE FRANCIS, ALLEN & OVERY LLP - DUBAI FRAUD IN INTERNATIONAL ARBITRATION

2 2 1.Separability of arbitration clauses 2.Arbitrability of fraud claims 3.Tactics in arbitrations concerning fraud 4.Arbitration as instrument of fraud 5.Arbitration award secured by fraud CONTENTS

3 3 FRAUD IN INTERNATIONAL ARBITRATION Does the tribunal have jurisdiction to deal with fraud cases? Arbitration agreement is treated as a distinct agreement Invalidity or non-existence of main agreement does not necessarily mean arbitration agreement is invalid or non-existent Fiona Trust v Privalov [2007] UKHL 40 Section 7 UK Arbitration Act 1996 SEPARABILITY OF ARBITRATION CLAUSES?

4 4 FRAUD IN INTERNATIONAL ARBITRATION Does the tribunal have jurisdiction to deal with fraud cases? Arbitration is based on contract between the parties - Tribunal only has jurisdiction: – to determine disputes within the scope of the arbitration clause – over the parties to the arbitration agreement Principle that tribunal rules on own jurisdiction – widely recognised in international arbitration practice Arbitrators can deal with fraud allegations ARBITRABILITY OF FRAUD CLAIMS

5 5 FRAUD IN INTERNATIONAL ARBITRATION TACTICS IN ARBITRATIONS CONCERNING FRAUD The arbitration as an instrument of fraud

6 6 FRAUD IN INTERNATIONAL ARBITRATION Sham arbitrations - use of international arbitration process to launder money May be more attractive than litigation as documents not put on the public record and hearings are private Claimant and Respondent settle and request a consent award, which legitimises settlement payment No ICC scrutiny of consent awards THE ARBITRATION AS AN INSTRUMENT OF FRAUD

7 7 FRAUD IN INTERNATIONAL ARBITRATION Allegation of corruption tainting the contract A party to the arbitration alleges corruption – may be tactical The underlying contract is void/voidable/unenforceable Arbitrator suspects corruption in relation to the contract No allegation of corruption has been made by the parties HOW CAN MONEY LAUNDERING AFFECT INTERNATIONAL ARBITRATIONS?

8 8 FRAUD IN INTERNATIONAL ARBITRATION Money laundering issues – UK Proceeds of Crime Act 2002 (POCA) and Money Laundering Regulations (MLRs) POCA, s.328: an offence if a person "enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control or criminal property by or on behalf of another person POCA, ss : obligation to notify suspicions of money laundering MLRs: client identification requirements Bowman v Fels [2005] EWCA Civ 226 – did not specifically address arbitration but view that Courts principles and policy considerations also apply to arbitration and to arbitrators THE ARBITRATION AS AN INSTRUMENT OF FRAUD

9 9 FRAUD IN INTERNATIONAL ARBITRATION Money laundering issues Law Society guidance: Arbitration, like litigation, is not covered by the MLRs 2007 and as such the collection of client due diligence information is not required by law Following the decision of Bowman v Fels, genuine litigation and genuine arbitration will not amount to an arrangement for the purposes of s 328 POCA Sham arbitration will still be money laundering and a lawyer or even the arbitrator will need to consider money laundering offences THE ARBITRATION AS AN INSTRUMENT OF FRAUD

10 10 FRAUD IN INTERNATIONAL ARBITRATION Duty to investigate suspected fraud/corruption? Arbitrators cannot determine matters outside those submitted by parties (can result in refusal to recognise and enforce award) May have positive duty to investigate suspicions of illegality as failure to do so may facilitate illegality Failure to address possible illegality may expose award to enforcement challenges contrary to duty to render binding, final and enforceable award THE ARBITRATION AWARD SECURED BY FRAUD

11 11 FRAUD IN INTERNATIONAL ARBITRATION Illegality of underlying contract Is the underlying contract illegal or contrary to public policy? Depends on governing law of the contract but also consider law and public policy of: – place of performance – seat of arbitration Also consider international public policy THE ARBITRATION AWARD SECURED BY FRAUD

12 12 FRAUD IN INTERNATIONAL ARBITRATION Enforcement issues Enforcement of arbitral awards can be refused on grounds that confirming, recognising or enforcing the award is contrary to public policy in country in which enforcement sought However, enforcing courts are likely to consider public interest in respecting finality of arbitral awards and upholding New York Convention UK Arbitration Act 1996 section 68 - Award may be challenged on grounds that obtained by fraud was procured in way that is contrary to public policy – requires evidence of actual fraud eg Elektrim v Vivendi [2007] 2 All ER (Comm) 365 THE ARBITRATION AWARD SECURED BY FRAUD

13 13 FRAUD IN INTERNATIONAL ARBITRATION Also consider UK Bribery Act: accepting a bribe to induce a favourable award; offering a favourable award in return for re-appointment

14 14 FRAUD IN INTERNATIONAL ARBITRATION How should an arbitrator deal with a claim where he suspects that the contract is tainted by corruption? Refuse jurisdiction? Find the contract void, voidable or unenforceable by applying: – The law of the contract – Public policy of another jurisdiction – Mandatory rules of another jurisdiction The law of the place of performance The national laws of the parties The law of the seat CORRUPTION AFFECTING THE UNDERLYING CONTRACT


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