(a) Arbitrators as Guardians of International Legality
The relationship between arbitration and criminal law is not and should not be one of confrontation. Indeed, international criminal law powerfully contributes to the constitution of a true transnational public order, which is in turn an element contributing to the creation of an arbitral order autonomous from national laws. International criminal law is therefore part of the arbitral legal order to the same extent as trade usages and fundamental principles of international law. From this standpoint, arbitrators can be viewed as the true guardians of legality and good morals in international trade. There is in fact no doubt that the duties of the arbitrators are not only to the parties who have appointed them, but also to the international business community at large. In a worldwide marketplace, good governance, ethics and transparency are indispensable for ensuring competitors fair access to markets and a global market playing field. If arbitration was to become a safe harbour for illegality or a tool for fraud, it would not only be rejected by states, but also cease to be useful to the business community and, hence, to be the normal way of resolving international business disputes.
In order to understand the arbitrators’ duty to guard against fraud in international trade, two concepts should be avoided. The first is to assimilate them to national judges, and the second is to make them servants of the parties. In the first concept, arbitrators would have the duty to apply any local mandatory rule, and their awards would be closely scrutinised by national courts, leading in
practice to their review in the merits and depriving the parties of the main benefit of arbitration, which is finality. The second concept would lead to permitting the parties to defraud the state’s legitimate interest in having its mandatory rules applied, thus turning arbitration into a vehicle of illegality. It is therefore necessary to balance the autonomy and finality of arbitration with the need to fight illicit behaviour. The only way to achieve such balance is to distinguish parochial local mandatory rules, even when they are of a criminal nature, from universally recognised principles meant to serve the higher interests of the world community. The latter are part of transnational public policy, and arbitrators therefore have a duty to apply them regardless of the law chosen by the parties or of any rule of conflicts of laws.106 Such universal values are in fact, as the Swiss Federal Court ruled in its 1994 Westland judgment,107 the true public order of international arbitral tribunals.
Criminal law and international criminal cooperation have powerfully contributed to the creation and development of transnational public policy. In the field of international corruption, the OECD Convention,108 the Council of Europe Conventions,109 the work of the United Nations110 and of regional bodies,111 as well as the setting up by the World Bank of an Oversight Committee on Fraud and Corruption,112 illustrate the international acknowledgement of the need to fight what arbitrator Lagergren called, as early as 1963, ‘an international evil, contrary to good morals and to an international public policy common to the community of nations’.113
In the field of money laundering, the work of the Financial Action Task Force and the European Directives reveal a similar international consciousness. Many other examples can be given. Smuggling and piracy are certainly contrary to a widely generalised conception of fair trading and good morals. If certain embargo measures, such as those taken by the USA against Cuba or Libya with the Helms-Burton or Amato-Kennedy statutes, are not universally recognised, others, like those applied by the United Nations against the former regime of Saddam Hussein, had the nature of a transnational rule. The prohibition of drugs or human organs traffickimg, as well as of many other internationally recognised crimes, are also part of transnational public policy.
* Member of the Paris Bar, email@example.com. This article is an extension of the presentation made by the author at the Hellenic Arbitration Initiative colloquium on Arbitrability held in Athens, 23 September 2005.
106 E.g., an arbitral tribunal held that ‘a contract instigating or favouring the corruption of public officials is contrary to transnational public policy, and if this appears to be the object of the consultancy contract, there would be no other option than to find it null and void’ (ICC Award 8891, JDI 2000, 1076).
107 Les Emirats Arabes Unis v. Westland Helicopters, 19 April 1994, ASA Bull. 1994, 404.
108 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 21 December 1997. See also the 1996 OECD Recommendation on Tax Deductibility of Bribes to Foreign Public Officials.
109 Criminal Law Convention on Corruption signed in Strasbourg, 27 January 1999; Civil Law Convention on Corruption signed in Strasbourg, 4 November 1999. As noted by Sayed, supra n. 11 at p. 226, the Council of Europe is also considering adopting a Draft Additional Protocol to the Criminal Convention, whereby states would be compelled to adopt measures to establish as a criminal offence the fact of corrupting an arbitrator. The Organisation of American Sates Inter-American Convention against Corruption should also be mentioned.
110 The UN Economic and Social Council adopted in 1979 a Draft Convention to prevent and eliminate illicit payments in international business transactions, as well as a Draft Code of Conduct on Transnational Corporations. A UN Convention against Corruption was adopted in December 2003, which is not yet in force.
111 The 1996 Inter-American Convention against Corruption, the 1997 Convention against Corruption involving Officials of the European Communities or Officials of Member States of the European Union, the 2003 African Union Convention on Preventing and Combating Corruption.
112 World Bank President, Circular on New Measures to Combat Corruption, 15 October 1998. The World Bank has also put in place guidelines for the procurement of goods and services, see Sayed, supra n. 11 at pp. 292–295. The WTO has on its side established a Working Party on transparency in government procurement procedures. National laws on public procurement frequently provide that competitors are bound to provide declarations that their price does not include commissions paid to third party intermediaries. In many national laws, intermediation in public tenders is prohibited as such.
113 ICC Case 1110/1963, supra n. 10. On international corruption, see Sayed, supra n. 11 and, from the same author, ‘La question de la corruption dans l’arbitrage commercial international: inventaire des solutions’, ASA Bull. 2001/4, 653.
Effective July 1, 2015, Alexis Mourre was appointed President of the ICC International Court of Arbitration to succeed John Beechey. Member of the Paris Bar, Mr. Mourre is the founding partner of law firm Castaldi Mourre & Partners, a leading boutique in international arbitration and litigation practices. Apart from his varied experience as arbitrator, counsel and expert in ad hoc arbitrations and cases, he has had longstanding ties with the arbitral institution. He has also served as Vice-President of the ICC Institute of World Business Law.
Leaders League. You were recently appointed President of the ICC Court of Arbitration. What are the Court’s main missions at the moment?
Alexis Mourre. The ICC Court of Arbitration is the main arbitration institution in the world. Queen Mary’s recent study on international arbitration revealed that the ICC is the preferred institution of 68% of the survey’s respondents worldwide. The main mission of the Court is to administer the arbitrations under its Rules in the parties’ best interests. Firstly, we ensure that the arbitrators sitting in our tribunals are neutral and independent, whilst being scrupulous with regards to the thoroughness of conflicts of interest disclosure statements conducted throughout the proceedings. Then we ensure the procedure is conducted in the most efficient way by the arbitral tribunal, both in terms of costs and timing. We operate on three levels. In the first place, we ensure that our arbitrators fill in an availability statement, declaring, at the time of appointment, their periods of unavailability over the next twelve or eighteen months, thereby committing to the time periods they indicate as available. Secondly, we stay in touch with and question our arbitrators over the course of the procedure to find out how the case is progressing, in order to track down potential delays and to remind them of their duty of care. Lastly, we sometimes severely sanction the tribunals that accumulate inexcusable delays when we set about fixing the arbitrators’ fees. We carry out rigorous quality checks on the arbitral awards, a unique feature of the ICC. No arbitral award can be notified to the parties without the Court’s approval. This control allows us not only to correct clerical mistakes or irregularities that may affect the validity of the award, but also to clarify the arbitrators’ reasoning, avoid conflicting motives, or draw the arbitrators’ attention to ultra petita decisions, or those decisions which could be based on reasons that the parties had not had the opportunity to discuss.
Leaders League. In 2014, the ICC set up mediation rules, which seem to have elicited some success. More confidential in the business world, mediation seems to be experiencing some success under the ICC rules.
A.M. Our mediation rules offer a very efficient tool to parties who want to settle their dispute amicably. A very large majority of cases in which the parties have dealt with a mediator result in transactions. The parties resorting to mediation are public or private companies, and even states.
Leaders League. What elements combine to make Paris one of the leading arbitration centers in the world?
A. M. Paris has always been noted for its very favorable jurisprudence for arbitration. This recognition is based on the validity of arbitration agreements, subject only to the consent of parties and international public policy, as well as strong support for the enforcement of the award. Hopefully this keen interest in arbitration will not be called into question, as that would be extremely damaging for the Paris market. Today there is fierce competition between arbitration centers worldwide. Each of them must try to offer the most favorable legal framework for arbitration, in order to preserve or enhance its appeal.
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Please refer tot his post as: Roger Alford (Editor) , ‘Introducing Alexis Mourre’, Kluwer Arbitration Blog, April 28 2009, http://arbitrationblog.kluwerarbitration.com/2009/04/28/introducing-alexis-mourre/
Kluwer Arbitration Blog is pleased to introduce Alexis Mourre as a guest blogger for the next month. Alexis specialises in international arbitration and international litigation with the law firm of Castalde Mourre & Partners in Paris. He has served as counsel to party, co-arbitrator, sole arbitrator or expert in more than 80 international arbitral procedures, both ad hoc and before the most prominent arbitral institutions. He is a member of the Counsel of the International Business Law Institute of the International Chamber of Commerce as well as of a large number of scientific and professional institutions dedicated to arbitration and private international law. Alexis Mourre is the author of numerous books and publications in the field of international business law, private international law and arbitration law. He directs the “Cahiers de l’Arbitrage”, a leading French publication in the field of arbitration.
We look forward to reading his contributions.
The International Chamber of Commerce (ICC) Executive Board has recommended that Alexis Mourre be appointed to succeed John Beechey as President of the ICC International Court of Arbitration®. Mourre’s presidency will begin on July 1, 2015. The recommendation will be submitted to the ICC World Council for approval at its meeting in Turin, Italy in June 2015.
The International Court of Arbitration® is the world’s leading body for the resolution of international disputes by arbitration. Each year, numerous parties, arbitrators and lawyers from countries of every economic, political and social system are present in ICC arbitrations.
“It is for me a great honor and privilege to have been selected to succeed John Beechey,” said Mourre. “I warmly thank the Selection Committee, the ICC Executive Board and the ICC Chairmanship for their trust. I look forward to building on the successes of the outgoing presidency to continue improving the quality and efficiency of the services provided by the ICC International Court of Arbitration®.”
A vice president of the ICC Court, Mourre is a member of the Paris Bar and the founding partner of Castaldi Mourre & Partners, a leading boutique international arbitration and litigation practice. Mourre’s longstanding links with ICC also include service as a vice president of the ICC Institute of World Business Law.
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Mr. Mourre, who is currently serving as President of the ICC International Court of Arbitration, is a member of the Paris Bar and the founding Partner of Castaldi Mourre & Partners. Mr. Mourre's longstanding links with ICC also include service as a Vice-Pesident of the ICC Institute of World Business Law.
He has a wealth of experience variously as counsel, arbitrator and expert in ad hoc arbitrations and cases conducted under the rules of prominent arbitral institutions. He has held a number of leadership positions on the International Bar Association Arbitration Committee, the London Court of International Arbitration and the Milan International Chamber of Arbitration. He is the author of numerous books and publications in the field of International Business Law, Private International Law, and Arbitration Law. He is the founder and past editor in chief of Les Cahiers de l'Arbitrage - The Paris Journal of International Arbitration.
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