I. Introduction

1. Corruption may affect the course of an arbitration in different respects.1Corruption allegations may be raised by the principal for refusing to pay a commission on the ground that the agency contract is illegal. A party may claim that the main contract was obtained by corruption and is hence illegal. The same argument can be made in relation to illegality of concessions of public works or services allegedly obtained by corruption of state officials. In investment arbitration, jurisdictional or inadmissibility objections can be raised by the state on the ground that the investment was tainted by corruption and should hence be excluded from the treaty protection. On its side, the investor may claim expropriation or discrimination resulting from its refusal to pay bribes to state officials.

2. In all these situations, arbitrators must deal with corruption allegations and they will have to take evidence concerning acts of corruption. Taking of evidence is delicate in this field. Corruption behaviors typically do not materialize in direct evidence and are notoriously difficult to prove. Further, unlike courts, arbitrators have no coercive powers. There is a manifest tension between the private nature of arbitration and the criminal nature of corruption.

3. This difficulty in the evidentiary process resulted in specific rules related to the assessment of evidence in arbitration or to the extent of arbitrators' investigative powers.2

4. Even if such specific rules are recognized and applied, the position of arbitrators remains uncomfortable: arbitrators are private individuals with no coercive powers; they are not well-equipped to establish corruption activities.3They may have jurisdiction to deal with corruption allegations but are not necessarily 'competent' - in the sense of their ability to carry out the task.

In this context, arbitral proceedings and criminal investigations go frequently in tandem. They interact and may influence one another.

The relationship between arbitral proceedings and criminal investigations raise several issues. This contribution focuses on the impact of criminal investigations on the arbitral proceedings.

5. To comply with the program of the conference, I will distinguish between ongoing investigations and completed investigations (in French, enquêtes criminelles en cours and enquêtes criminelles clôturées). The word 'investigations' is used in its broadest sense and encompasses all types of criminal proceedings carried out by a judge or public officials and aimed at establishing and sanctioning corrupt activities.

II. Impact of Ongoing Criminal Investigations

A. The General Principles

6. When criminal investigations are ongoing, the question for the arbitral tribunal is whether such investigations result or should result in a stay of the arbitral proceedings. It is assumed that the investigations concern facts that are relevant for assessing the corruption allegations made in the arbitration.

7. From the analysis of the case law and arbitral practice, it seems to be possible to identify three general principles that apply to the stay of arbitral proceedings in case of parallel criminal investigations.

First, there is no duty on the part of the arbitrators to stay the arbitral proceedings.4The stay is neither mandatory nor automatic.

Second, arbitrators have a broad discretion to stay the proceedings. It is a matter of assessment of the situation.

Third, arbitrators appear reluctant to stay the arbitration until the completion of the criminal investigations. In other words and despite the broad discretion, there is a bias in favor of continuing the arbitration, or to put it differently, a presumption against the stay.

8. These principles were clearly expressed in a landmark decision of the Swiss Federal Tribunal in connection with the Megaphone saga.5The case was about money laundering but the principles related to the stay of the arbitration were expressed in very general terms and apply equally to criminal investigation concerning corruption cases.

9. In a nutshell, the arbitral tribunal found that the contract was illegal and hence null and void because it was related to money laundering. In the course of the proceedings, the arbitral tribunal had refused to stay the arbitration despite the fact that criminal investigations were pending and allegedly influencing the course of the arbitration.

The award was challenged before the Swiss Federal Tribunal on different grounds, including lack of jurisdiction.

10. The Swiss Federal Tribunal confirmed that the arbitral tribunal has jurisdiction to clarify and address issues pertaining to criminal law in order to assess the validity of the contract and to apply in this context criminal provisions - even if these issues are not as such arbitrable.6

In other words, arbitrators have jurisdiction to deal with any criminal law issues, to the extent that such issues are preliminary questions relevant to the resolution of the dispute.

11. Further and more importantly for our present purposes, the Swiss Federal Tribunal made three propositions concerning the stay of the arbitral proceedings because of the pending criminal investigations:

a) The arbitral tribunal has a discretionary power to stay the arbitration;

b) In case of doubt the principle of 'celerity' should prevail and no stay should be ordered;

c) Difficulties in the evidentiary process do not, as a rule, constitute a sufficient reason to stay the arbitration.

The relevant sentences read as follows:

Le tribunal arbitral peut ordonner une suspension du procès s'il le juge opportun au regard des intérêts des parties; cependant, en cas de doute, il doit faire prévaloir le principe de célérité du procès car la suspension constitue éventuellement un déni de justice ou un retard injustifié (…) La suspension peut notamment se justifier jusqu'à droit connu sur une autre instance, lorsque celle-ci porte sur une question préjudicielle que le tribunal arbitral devrait autrement résoudre lui-même (…).

Les difficultés qui surviennent en général dans les mesures probatoires, en raison de l'existence d'une enquête pénale, ne constituent pas un motif impérieux de suspendre l'instance arbitrale, cela d'autant moins lorsque, comme en l'espèce, le tribunal arbitral annonce d'emblée qu'il prendra, au besoin, des dispositions adaptées aux circonstances.7

In free translation:

The arbitral tribunal may order a stay of proceedings if it deems it appropriate as regards the parties' interests; however, in case of any doubt, it must uphold the principle of expeditiousness of the proceedings because the stay of proceedings may constitute a denial of justice or an unjustified delay (…). The stay of proceedings may in particular be justified until the legal situation is clarified under another procedure, when the latter concerns a preliminary question that the arbitral tribunal should otherwise settle itself (…)

The difficulties arising in general in evidentiary measures due to the existence of a criminal investigation, do not constitute a compelling reason for a stay of the arbitration proceedings, this all the less when, as in the instant case, the arbitral tribunal straight away announces that, if need be, it will take measures appropriate to the circumstances.

This decision is interesting because it is a court decision - not an award - that expresses a clear bias in favor of continuing the arbitration proceedings.

12. The idea that arbitrators should be reluctant to stay the arbitration is also found in legal writings. As Kurkela has put it, "[t]he panel should in dubio continue pursuing the proceedings further as expeditiously as possible…".8However, this idea is worth being tested.

13. The attitude of arbitrators towards pending criminal investigations is the central issue and it has a direct impact on the stay of the arbitral proceedings. If arbitrators are not armed to establish corruption allegations, if they feel uncomfortable, why should they not wait for the outcome of the criminal investigations?

14. Putting the question raises the spectre of endless arbitral proceedings that are paralyzed forever because of dilatory criminal proceedings carried before slow, or worse biased, judges. As the Swiss Federal Tribunal has observed, a stay can ultimately result in a denial of justice.9

15. Nevertheless, it does not seem very useful to pose a 'presumption' against staying the arbitration proceedings. By the same token, the proposition that 'in case of doubt' the proceedings should continue is ambiguous. What is the notion of 'doubt' in this context?

Rather, a decision to stay - or not to stay - should be made on the basis of different factors that may be interesting to explore further.

16. The following relevant factors (not necessarily classified by importance) may be mentioned:

i) The (true) relevance of the criminal investigations

17. The arbitral tribunal will have to examine whether the corruption allegations brought in the arbitration are at the heart of the criminal investigations.

Sometimes, the criminal investigations are indirectly related to the allegations of corruption but they have another focus. It is the duty of the arbitral tribunal to make sure that the investigations are capable of producing useful clarifications and materials.

ii) The timing of the request for a stay of the arbitration and the stage of the criminal investigations

18. The arbitral tribunal should be more reluctant to stay if the request for a stay is filed late in the arbitral proceedings and on the basis of newly commenced criminal investigations, especially if the requesting party could have triggered the start of the criminal investigations earlier.

iii) The impartiality and efficiency of the criminal authorities dealing with the investigations

19. Arbitrators should not stay the proceedings if the investigations are carried out by biased authorities that are likely to favor one of the parties, usually the respondent state. Such factor may be delicate to assess - and, even more, to express in the arbitral tribunal's decision - but it cannot be ignored.

iv) The likelihood of reaching a result in a reasonable time

20. This factor is linked to the previous one. Arbitrators have to make an assessment concerning the likely duration of the investigations and the likely benefit of such investigations for assessing the corruption allegations in the arbitration. It is not very different from the assessment that is required for a lis pendens objection under some national laws.10

v) The appropriateness or unfairness of relying on the burden of proof

21. In civil matters, it is always possible to decide a case on the basis of the burden of proof. The party which has not adduced sufficient evidence will fail and its allegations will not be relied upon in the legal reasoning.

22. However, the arbitral tribunal will have to determine if it is appropriate to rely on the burden of proof in cases where a party insists on benefiting from additional evidence that would or could emerge from criminal investigations.11

In some cases, it may be appropriate and fair to apply strictly the burden of proof. This may be the case if both parties were involved in the corruption scheme.

In other cases, the allocation of risks linked to the notion of burden of proof may lead to unsatisfactory results. One may think of the situation where one party is the victim and has no access to evidence.

23. The above mentioned criteria are neither exhaustive nor new. However, weighing these different factors appears more useful than establishing a presumption against a stay of the arbitration proceedings, as it has been proposed.

B. The Exceptions

24. We have examined so far general principles that apply in respect of a stay of the arbitration related to pending investigations. As always, there are exceptions. There are situations where a stay of the arbitration is mandatory or imposed by a court decision.

25. First, a legal provision may impose a stay. For example, French law used to recognize the principle le criminal tient le civil en l'etat in domestic arbitration. By virtue of this principle, the civil proceedings - and, hence, the arbitration - is to be stayed until the completion of the criminal investigations.

However, this rule no longer appears to be a real concern in France, even in domestic arbitration, because Art. 4 of the Code of Criminal Procedure has been amended and no longer requires an automatic stay, even before civil courts.12

26. Second, a court can order a stay of the arbitral proceedings. Reference is made to the situation of anti-arbitration injunctions, which can also be ordered by criminal courts. The admissibility and legal effects of such injunctions are controversial and will not be developed in this contribution.

27. It may be worth mentioning that the reverse is also conceivable. Some ICSID arbitrators have enjoined parties from pursuing criminal law proceedings in order not to disrupt the arbitration.13

The most famous example is probably to be found in Quiborax v Bolivia were an ICSID tribunal issued provisional measures ordering a stay of criminal investigations initiated by Bolivia in order to preserve the integrity of the arbitration, in particular to avoid that some witnesses be discouraged from appearing before the arbitral tribunal.14However, such type of anticriminal injunctions is likely to be rare and confined to investment cases under very special circumstances.

III. Impact of Completed Investigations

28. For the purposes of the present analysis, it is assumed that the investigations have produced relevant materials (documents, declarations of witnesses, etc.) and that they were followed by a verdict concerning the acts of corruption at stake.

29. What will be the impact of such completed investigations on the arbitration? Two scenarios must be distinguished.

i) The criminal investigations are completed before the award is rendered;

ii) The criminal investigations are completed after the award was rendered.

A. The Criminal Investigations Are Completed Before the Award Is Rendered

30. If the criminal investigations are completed before the award is rendered, two main issues will arise.

31. First, will it be possible to make use of the criminal law file in the arbitration?

This should be the case as a matter of principle, but some legislations provide for rules imposing some form of secrecy of criminal investigations. If such restrictions to the access of the information are in place, the arbitral tribunal will face difficulties. One of them is related to the imbalanced situation that may arise if only one party has access to the file.

The party having access to the file may be tempted to select the elements of the file favoring its case. This is not a theoretical scenario. It is in fact rare that both parties will have the same access to the criminal law file.

Accordingly, one party will inevitably have an advantage and the arbitral tribunal will have to deal with this imbalanced situation.

32. The next question is the impact of the verdict rendered following the investigations on the determination to be made by the arbitral tribunal.

33. If the arbitration and the criminal investigations are conducted in different countries, the criminal verdict will not have a binding effect on the arbitral tribunal, which remains free to make its own assessment of the situation, including of the existence of a criminal offence.15

34. A binding effect of the verdict on arbitrators may exist in a domestic context where the arbitration and the criminal investigations are conducted in the same state, in particular if that state gives weight to the principle le criminel tient le civil en l'état. The mandatory stay would not make sense if the arbitrator were then at liberty to disregard the conclusions of the criminal law authorities.

35. In contrast, the substantive law of some states may expressly provide for the independence of the civil courts (or arbitrators) with respect to criminal law rulings.

Art. 53 of the Swiss Code of Obligation contains such a rule and Swiss case law and scholars stress that the civil judge is not bound by a previous judgment of a criminal court.16

36. Even if the criminal law ruling has no binding effect, it will be a significant element in the assessment of evidence by the arbitrators. It would be delicate for the arbitral tribunal to deviate from a criminal law ruling, especially if the arbitral tribunal has stayed the arbitration until the end of the criminal investigations and until the verdict is rendered.

37. Aside from the verdict, arbitral tribunals have regularly taken into account the result of criminal investigations in their assessment of the evidence.

In Niko Resources v Bangladesh,17the arbitral tribunal duly took into account the investigations and decisions made about corruption in Canada and Bangladesh. The Tribunal stated in particular the following in that respect: "(…) the acts of corruption of which the Claimant was convicted were committed in Bangladesh. If there were any other such acts committed they must have concerned persons making decisions in Bangladesh. Therefore, the authorities of Bangladesh were best placed to investigate and collect proof of corruption relevant for the present case".18

38. In sport cases where acts of corruption may result in criminal investigations before state courts and, at the same time, in sport sanctions, CAS has stressed its independence with respect to findings of criminal law authorities but also the need for taking into account in the assessment of evidence the materials collected in the criminal investigations. Such interaction is not rare in cases of match fixing. CAS has stated that it "make[s] its own evaluation […]. Even if the [national] Court would acquit all the persons accused, this would not have any influence on the conclusions of the Panel in these appeal arbitration proceedings".19

CAS made other interesting statements on the difference in the standards of proof related to criminal offence and sport sanctions, and the impact of such difference:20

542. The Panel took into account that the decision of the 16th High Criminal Court in Istanbul did not yet become final and binding since several individuals appealed this decision. Although the Panel restrained itself from drawing clear conclusions from this decision and made its own evaluation of the facts, the Panel observes that the Supreme Court Prosecutor confirmed the convictions of all the Fenerbahçe officials. The Panel finds that a criminal conviction, although not yet final and binding, can be taken into account to corroborate the conclusions reached in the decision challenged.

543. In this sense, the Panel makes reference to a recent CAS Award in a matter pertaining to match-fixing allegations against the Ukrainian club FC Metalist. In this case a Ukrainian criminal court acquitted FC Metalist. Nevertheless, the CAS panel came to a conviction. In explaining these different outcomes, the CAS panel, when assessing the underlying facts, inter alia, determined that the panel is not guided by the standard of proof beyond any reasonable doubt in the present case, but has to be convinced to its comfortable satisfaction (CAS 2010/A/2267, §746).

544. In this respect, the Panel adheres with UEFA's statement that the fact that CAS does not have to follow a criminal acquittal does not mean that CAS will not have to take into account a criminal conviction. While a criminal conviction on the higher standard is not automatically conclusive, it is very unlikely that proceedings before CAS, on the lower standard of comfortable satisfaction, will result in a contrary conclusion.

545. Insofar the above-mentioned adjudicatory bodies [including the Turkish courts] did not come to a conviction of Fenerbahçe officials (…), the Panel explained why it deviates from such findings. Insofar certain adjudicatory bodies did not investigate a certain match (…), the Panel, next to its own findings, feels comforted by the findings of the remaining adjudicatory bodies that did come to a conviction in respect of these matches.

546. Consequently, the Panel finds that Fenerbahçe is guilty of attempting to fix, through its officials, four matches in the Turkish Süper Lig in the 2010/2011 season. The Panel concludes that the merits of the case warrant disciplinary sanctions to be imposed on Fenerbahçe.

B. The Criminal Investigations Are Completed After the Award Is Rendered

39. The completed criminal investigations can also have an impact after the award has been rendered. We assume, for the purposes of the analysis, that the outcome of the criminal investigations is conflicting with the outcome of the arbitration. The arbitrators reached the conclusion that corruption allegations were not established while the criminal investigations led to a verdict of corruption.

40. As such, a criminal verdict which would be issued after the award and which would be conflicting with the outcome reached by the arbitrators does not constitute a ground for setting aside the award. The verdict can only be used as a means of establishing that the arbitrators made a wrong ruling and that the award is in breach of public policy because it has not sanctioned an act of corruption. The prospects of success of such action for setting aside will in particular depend on the extent of the court's power to review the facts established by the arbitrators. The permissible extent of such court review differs from one jurisdiction to another. It has become usual to distinguish between a 'minimal', a 'maximal' and a 'contextual' review.21The impact of a conflicting verdict issued after the completion of the arbitral proceedings will depend on the degree of deference to the findings of facts made by the arbitrators in the award and on the importance attached to the finality of the award by the courts of the seat.

41. In any case, a subsequent verdict may only have an impact in connection with setting aside proceedings if it is rendered before the expiry of the time limit for filing an action to set aside the award. Such time limits are not uniform in the different jurisdictions and vary from 30 days (28 days in the UK) to three months.22

42. In exceptional circumstances, a subsequent verdict of corruption may be the basis for a request for a revision of the award. The revision (or revocation) is an extraordinary remedy resulting in the annulment of the award and the reopening of the case where, for instance, the arbitration has been influenced by a criminal offence or in the event of discovery of crucial facts or evidence following the issuance of the award.23

43. A revision is possible if it is found that the arbitrators were corrupted. This is fortunately very rare. By contrast, if, following the issuance of the award, a court establishes acts of corruption in connection with the underlying dispute between the parties, this will not mean that the arbitration has been influenced by a criminal offence. Accordingly, it will not be possible to seek the revision of the award on the ground that it was "affected by a criminal offence".24For example, in the Thomson-CSF v Frontier AG case, the Swiss Federal Tribunal annulled the award on the ground that the investigations in France established the existence of a fraud in the arbitral procedure (escroquerie au procès) having a direct influence on the outcome of the award.25On the other hand, the acts of corruption related to the sale of the six frigate warships to Taiwan concerned the merits of the dispute and were irrelevant before the Swiss Federal Tribunal for the purposes of assessing the request for revision at stake.26

44. Even if the acts of corruption have not affected the arbitral proceedings as such, a subsequent verdict of corruption can reveal facts or evidence which justify a request for revision on another ground, namely the subsequent discovery of material facts or decisive evidence.27Such ground for revision is available in Switzerland under very restrictive conditions28but it is not available in every country.29Importantly, it is not the verdict as such which will be the ground for revision, but the newly discovered facts or evidence that have come to light in the criminal proceedings.

45. It may be worth mentioning that a similar ground is provided for under Article 51 (1) ICSID Convention, which permits a revision of the award "on the ground of discovery of some fact of such a nature as decisively to affect the award, provided that when the award was rendered that fact was unknown to the Tribunal and to the applicant and that the applicant's ignorance of that fact was not due to negligence". In view of the exceptional nature of this remedy, the test is strict and the standard of proof is high in the case of revision applications based on corruption allegations.30

46. Like for the setting aside of the award, a criminal verdict which would be issued after the award and which would be conflicting with the outcome reached by the arbitrators does not in and of itself constitute a ground for refusing the recognition and enforcement of the award. Such subsequent verdict can only be used as a means of establishing that the arbitrators made a wrong ruling and that the award is in breach of public policy - within the meaning of Article V (2) (b) New York Convention - because it has not sanctioned an act of corruption. As mentioned above, the extent of the court review concerning the facts established by the arbitrators differs from one state to the other.

IV. Concluding Remarks

47. When corruption allegations are at stake in the context of a dispute subject to arbitration, arbitral proceedings and criminal investigations go frequently in tandem and their interaction raises interesting issues. Arbitrators are usually not bound to stay the proceedings even if the corruption allegations are relevant for the outcome of the case. They have a discretionary power and we have tried to identify some relevant factors that arbitrators should consider in the exercise of their discretion.

48. Once the criminal investigations are completed, the impact of the criminal decision on the arbitration will be different if the award has not yet been rendered or if it was rendered. In the latter case, the award may ultimately be in conflict with the outcome of the criminal investigations. This conflict is particularly delicate if the award has come to the conclusion that corruption was not established and if the criminal investigations reach a different result. There will be a tension between the res iudicata effect and finality of the award, which justify giving legal effect to the award, and the principle of public policy, which prohibits giving legal effect to acts of corruption.

1
See, among others, Antonio Crivellaro, "Arbitration Case Law on Bribery: Issues of Arbitrability, Contract Validity, Merits and Evidence", published in Dossier of the ICC Institute of World Business Law: Arbitration - Money Laundering, Corruption and Fraud, 2003, pp.109 ff; Carolyn Lamm, Hansel T. Pham and Rahim Moloo, "Fraud and Corruption in International Arbitration" in Ángel Fernández-Ballesteros Miguel and Arias David (eds), Liber Amicorum Bernardo Cremades, Wolters Kluwer España; La Ley 2010, pp.699-731; Matthias Scherer, "International Arbitration and Corruption - Synopsis of Selected Arbitral Awards", ASA Bulletin 2001, Volume 19 Issue 4, pp.710- 716.

2
See, the contributions in this volume of…, pp.[cross references to relevant articles].

3
Alexandre de Fontmichel, "Procédure pénale et arbitrage commercial international; quelques points d'impact", Les Cahiers de l'Arbitrage, 2012-2, pp.309- 319, 315; Karen Mills, "Corruption and Other Illegality in the Formation and Performance of Contracts and in the Conduct of Arbitration Relating Thereto", ICCA Congress Series No. 11 , 2003, p.295.

4
Alexis Mourre, "Arbitration and Criminal Law: Reflections on the Duties of the Arbitrator", Arbitration International 2006, Volume 22 Issue 1, pp.95-118, 113-114.

5
B. Fund Ltd v A. Group Ltd, Swiss Federal Tribunal, Case No. 4P_168/2006, 19 February 2007.

6
Id, para. 5.

7
Id, paras 6.1 and 6.2.

8
Matti Kurkela, "Criminal laws in International Arbitration - the May, the Must, the Should and the Should Not", ASA Bulletin 2008, Volume 26 Issue 2, pp.279 ff, 290; See also Matti Kurkela, Santtu Turunen, "Due Process in International Commercial Arbitration", OUP, 2nd Ed., 2010, pp.148-149.

9
B. Fund Ltd v A. Group Ltd, Swiss Federal Tribunal, Case No. 4P_168/2006, 19 February 2007, para. 6.1.

10
E.g. Article 9 (1) Swiss Private International Law Act, referring to the notion of 'acceptable duration' (delai convenable) as a limit to the stay of proceedings based on lis pendens.

11
Carolyn Lamm, Hansel T. Pham and Rahim Moloo, op. cit., pp.700-701.

12
De Fontmichel, op. cit., p. 314, stressing that the principle le criminel tient le civil en l'etat is in any event not applicable in international arbitration and referring in that respect to a decision of the Cour de cassation of 25 October 2005, published in Rev. Arb. 2006-1, pp.106-125; David Chilstein, "Droit pénal et arbitrage", Rev. Arb. 2009-1, pp.3-70, 44-49.

13
Caratube International Oil Company LLP v Republic of Kazakhstan, ICSID Case No. ARB/08/12, Decision Regarding Claimant's Application for Provisional Measures, 31 July 2009.

14
Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplun v Plurinational State of Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures, 26 February 2010.

15
Fenerbahce Spor Kulubu v UEFA, CAS 2013/A/3256, para. 544.

16
Swiss Federal Tribunal, ATF 125 III 401, JdT 2000 I 110, para. 3; Franz Werro, Commentaire Romand, Code des Obligations I, 2nd Ed., Helbing Lichtenhahn, p.505, para. 4 ad Art. 53.

17
Niko Resources (Bangladesh) Ltd. v Bangladesh Petroleum Exploration & Production Company Limited ("Bapex"), and Bangladesh Oil Gas and Mineral Corporation ("Petrobangla"), ICSID Case Nos. ARB/10/11 and ARB/10/18, Decision on Jurisdiction, 19 August 2013, paras 423-429.

18
Id, para. 425.

19
Fenerbahçe Spor Kulubu v UEFA, CAS 2013/A/3256, para. 267.

20
Fenerbahce Spor Kulubu v UEFA, CAS 2013/A/3256, paras 542-546.

21
Abdulhay Sayed, Corruption in International Trade and Commercial Arbitration, Kluwer Law International 2004, pp.391-421.

22
For a comparative law perspective, Jean-François Poudret/Sébastien Besson, Comparative Law of International Arbitration, Thomson/Sweet & Maxwell, 2007, pp.713-719.

23
For a comparative law perspective, Poudret/Besson, op. cit., pp.786-791.

24
Bernhard Berger/Franz Kellerhals, International and Domestic Arbitration in Switzerland, 3rd Ed., Berne 2014, pp.690-691 (for a presentation of Swiss law).

25
Swiss Federal Tribunal, 4A_596/2008, para. 4.2.3.

26
The request was based on the ground that criminal investigations established that the decision, i.e. the award, was influenced to the detriment of the applicant by a criminal offence, Article 123 (1) of the Swiss Federal Tribunal Act.

27
Berger/Kellerhals, op. cit., p.691.

28
Berger/Kellerhals, op. cit., p.691.

29
See Chilstein, op. cit., p. 66- 67.

30
Richard Kreindler, "Applications for "Revision" in Investment Arbitration: Selected Current Issues", in Ángel Fernández-Ballesteros Miguel and Arias David (eds), Liber Amicorum Bernardo Cremades, Wolters Kluwer España; La Ley 2010, pp.679-697, 690 ff.