I would like to make a few remarks, in no particular order.

During this conference we repeatedly discussed the 40-year-old decision of Judge Lagergren. In deciding that the dispute was not arbitrable as a case of corruption was involved, Lagergren's decision is clearly out of date. You might perhaps say that this is the old English position: whenever a fraud is involved the matter is not arbitrable. But then, this position is not that old because the Supreme Court of Pakistan only recently decided exactly along the same lines in an ICC case. There have been one or two decisions where the Supreme Court of Pakistan decided that a case could not be decided by arbitration but had to be decided by the public courts as a party alleged that the contract, the subject of the dispute, had been obtained because of bribes paid to the previous government.

Perhaps there is some confusion in this debate. Using arbitration for laundering money seems to require an agreement between the parties. Such an agreement was mentioned in the discussions as a possibility in an award on agreed terms. Arbitrators, as well as to a certain degree arbitral institutions, should of course avoid being used as an instrument in such a process. Fortunately, cases where this might apply are rare.

Corruption is a different matter, and is not necessarily linked to money laundering. Indeed, they are two separate issues with regards to arbitration. First of all, one has to note that obviously not every agency contract is a contract to corrupt. Agents do provide valuable services and proper services, in sometimes very delicate circumstances. [Page159:]

In this connection, we are clearly no longer in the Lagergren environment. The issue today is not whether the dispute is arbitral or not, but what does the applicable law say. The duty of arbitrators is to decide the case based on the applicable law or the rules of law which they deem to be appropriate. Of course, corruption has become something which is now considered to be against public order and therefore falls under Article V (2) b of the New York Convention.

The Eco Swiss and Benetton case was somewhat different because the European Court to a certain degree left the door open. As the Dutch courts had exhausted their internal proceedings reviewing the award and, notwithstanding that the award was against European public order, it could still be a valid arbitration decision. So it seems to be a problem of qualification, as the question is: if a violation of public order occurred, is the award then void or only voidable? With regards to antitrust matters, the question can perhaps be left open, especially when we are dealing with non-Western European parties, whereas corruption in all cases is considered to constitute a violation of international public order.

But then, of course, it comes down to the question of evidence. The arbitrators, for instance under the ICC rules, have the duty to establish the facts with all appropriate means as fast as possible. One often talks about negative inference etc. In reality, based on my experience, the question should be: what party carries the burden of proof for what allegations? Arbitrators sometimes seem to have difficulties in deciding this question clearly. Also in cases involving an allegation of corruption, one usually has a claimant who wants money from the other party. Obviously the question is: has the claimant brought the necessary evidence that the facts are such that it is entitled to the remedy it seeks, and does the applicable law allow this remedy? Fortunately, corruption does not often became an issue. I did not look at all the cases of Maître Crivellaro, but I thought his presentation was an excellent summary of them and it should not be all that difficult for arbitrators to establish the facts and apply the law to them.

In this connection, I would just like to make one closing comment regarding Article 35 of the ICC Rules. I would like to point out once more that this is a default provision, and not a primary, absolute rule. Article 35 says: "In all matters not expressly provided for in these rules, the arbitrator shall act in spirit of these Rules and shall make every effort to make sure that the award is enforceable at[Page160:] law." Therefore, it is not an absolute obligation for arbitrators to make awards that are enforceable. For one thing, we never know under what law awards will be enforced. You just have to go and look at Haliburton and Chromalloy. Many awards for proper legal reasons cannot be enforced in a particular country. Sometimes they do not need to be enforced at all and they are primarily needed, for instance, to allow an insurance company to pay to the winning party. It is therefore very dangerous to argue that Article 35 is a general rule that says arbitrators always have to see to it that they render an enforceable award because one cannot always really define what an enforceable award means. [Page161:]