Arbitration and Crime

Abstract

Arbitration is usually regarded as a domain exclusively reserved for private law. Inevitably, however, certain criminal matters and allegations might creep into arbitral proceedings. The dispute itself could be fictitious, a screen for money laundering, or the underlying purpose of alleged consultancy might be bribery. Testimony or expertise offered before the tribunal might be false. In such cases, arbitrators can either address the criminal matters or turn a blind eye to them. Immediately, there is a dilemma whether the arbitrator's duty to report, if any, overrides the principle of confidentiality of arbitral proceedings. It is submitted that arbitrators are a part of the judicial system and they fail to qualify for any privilege exception. When deciding issues of bribery, however, they are still faced with difficult issues of burden of proof and law applicable to illegality. The task of deciding on the merits becomes particularly difficult if they do not take the jurisdictional way to terminate the proceedings. In such a case, it might prove fairly difficult to avoid unjust solutions. Finally, false testimony may undermine the very foundation on which an award is based, yet it is not always clear which procedural mechanisms should be used to rectify such deficiency. This difficult dilemma is, however, for legislators and judiciary, rather than for arbitrators.