Part III Guide to Key Jurisdictional Issues, 18 The State’s Corruption Defence, Prosecutorial Efforts, and Anti-corruption Norms in Investment Treaty Arbitration

This chapter addresses two developments in the field of investment arbitration and corruption. First, it discusses the ‘binary’ or ‘harsh’ outcomes in investment arbitration awards and query whether there is scope within the field to level the playing field. It discusses cases where illegality — including corruption — has surfaced, whether as a question of jurisdiction, or of admissibility or of the merits. It then considers the viability of conditioning the State’s entitlement to assert corruption as a defence on proof of steps by the respondent State to investigate and prosecute public officials for corruption. Second, the chapter surveys recently concluded investment agreements that incorporated anti-corruption norms within their text, and considers the extent to which they address the issues facing corruption globally and within the investment arbitration space.