Original scientific paper
https://doi.org/10.3935/zpfz.69.2.02
The Corruption Defense and Responsibility of the State in International Investment Law for Corrupt Acts of Its Officials
Orsat Miljenić
orcid.org/0000-0002-9191-3344
; Croatian Parliament, Zagreb, Croatia
Abstract
The corruption defense is being used more and more frequently. International investment arbitral tribunals tend to accept it as a complete defense – if the state can prove that there was corruption connected with the establishment of an investment, the investor is denied protection of the relevant investment treaty. Such an approach, disregarding the fact that corruption is by its nature bilateral, punishes only one side – the investor, while the state is in a way immunized despite the fact that its officials, sometime even highest-ranking officials, were engaged in the same corrupt act. Such an asymmetrical approach to the responsibility for corruption of the state and of the investor is contrary to the rules of international law regarding the responsibility of states. The article presents an analysis of the relevant rules regarding the responsibility of states in general and specifically for corruption in international public law, and their application to international investment law, arbitral practice regarding the corruption defense and its development. Possible solutions by way of amending international investment law or by applying existing rules of international public law, namely the principle of acquiescence, are proposed.
Keywords
international investment arbitration; corruption defense; responsibility of states; attribution; acquiescence
Hrčak ID:
220236
URI
Publication date:
13.5.2019.
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