I have the difficult, unenviable task of trying to summarize and synthesize what we have done, where we have been, and where we might be going in terms of the intersection between issues of corruption and international arbitration. As it is phrased in our program, "Is Anything Broken or Otherwise Worth Fixing?" And what are the prospects for the future? What is realistic and feasible?

As many of you will know, there's the old adage "If it ain't broke, don't fix it." So in this context it is surely the case that there are certain things that are not broken and should not be fixed. There are also certain things that are broken, but they also cannot be fixed, and therefore, particularly in this very difficult area, we need to take a closer look.

I would like to try to do so by undertaking a necessarily brief tour d'horizon of where we have been throughout the annual meeting, beginning with socalled "gateway issues" of arbitrability, jurisdiction, admissibility, and procedure. I start with the reservation or the observation, which I think was rightly made by more than one author, to the effect that "gateway" may or may not be the appropriate expression. Gateway, in my experience, has actually achieved currency and even acceptance, particularly in the United States in the last three or four years with respect to the American concept of competence-competence most vividly exemplified by the recent U.S. Supreme Court decision in BG v Argentina. Although it did not relate to corruption per se but rather to a prerequisite for the exercise of jurisdiction by an international tribunal in its treatment of competence-competence and who has "the last word," the court or the arbitral tribunal, in its own indirect way it is applicable to some of the issues addressed in this publication.

And, of course, whatever has been discussed there are some similarities between commercial and treaty arbitration. There are some useful overlaps, and there are some areas where they do not overlap at all. There are also areas where any effort to apply commercial arbitration principals to investment arbitration principals and vice versa is ill-advised and may actually lead to more confusion and wrong answers than we might realize. In fact, one of our authors suggests that investment arbitration does not exhaust the meaning of the law in the world. I understood him to state that investment arbitration decisions will not provide all the answers, or all the right answers, including to the question of corruption. In this regard, we have tried to have an evenhanded approach to commercial arbitration, on the one hand, and investment arbitration, on the other. This is not always an easy thing to do and, in my experience, not even attempted in most scholarly treatment of this subject. In any event, we must bear in mind what the relevance of commercial arbitration is for investment arbitration in this area, where it begins and where it ends.

In this context, we have the notion of "transnational public policy," which is clearly relevant to both commercial and investment disputes. We have "good faith," which is surely relevant to both, including in the common law context. We have the concept of the "legality" of an investment under a BIT and the ICSID Convention, where applicable, whether express or implied, as a unique feature of in investment arbitration. There was also the discussion within the gateway context of "unclean hands," both in commercial and investment treaty arbitration. As we know, unclean hands or various iterations of unclean hands, which has been around for a long time in many different forms and well before the advent of the 1965 Washington Convention, well before mixed commissions in the 19th Century or earlier.

Thus, unclean hands was a centerpiece of our discussion. I would submit to you that in private international law, in commercial arbitration, the concept and application of unclean hands would not necessarily seem to be broken. In investment arbitration, on the other hand, it is certainly a matter of considerable debate, debate as to whether there is even an acceptance of it as a public international principle. Ultimately, it is difficult to distinguish any kind of homogeneous approach to unclean hands, whether in investment arbitration or even commercial arbitration.

We moved from unclean hands to questions of attribution of allegedly or admittedly illegal conduct, also in the context of the International Law Commission Draft Articles on State Responsibility, particularly Articles 5 and 7. One of our authors writes about it with respect to the well-known 2006 decision in World Duty Free v Kenya, among other things, to the effect that the conclusion there was likely to have been correct while the manner in which it was achieved in that particular circumstance, in application of English and Kenyan law and not primarily under public international law, might leave room for discussion. This is one of the few cases that we have in this area. And it is like anything else: when there is a dearth of cases, then we deal with those few cases that we have, and sometimes they assume more importance than they were certainly intended to have or perhaps deserve to have.

Also significant in this area, in the vein of "preliminary objections" more than "gateway issues," is the question of the efficiency of the proceedings. This includes possible bifurcation of proceedings, as also now reflected in the greater emphasis placed expressly on efficiency in the newest LCIA Rules, the newest ICC Rules, and the IBA Rules of Evidence as revised in 2010. It is also notable that bifurcation of such preliminary issues from later merits issues is, in investment arbitration, apparently falling somewhat out of favor, at least anecdotally. We had a phase, again this is just my anecdotal impression, over the last 10 or 15 years where, particularly in these areas of jurisdiction and admissibility, including in a corruption context, there was a greater readiness of tribunals to bifurcate than apparently has been the case in the last three or four years. Indeed there have been a couple of detailed studies claiming to identify a growing disinclination to bifurcate.

This is relevant in the context of our subject. If we do not have consensus as to whether an objection, for example relating to corruption, is to be considered a preliminary issue as opposed to a merits issue and we decline to bifurcate, that means that we necessarily are putting everything raised by the corruption allegation - jurisdictional, admissibility and the merits - into the same pot. It does not prevent the tribunal from deciding, at the end, in the final award, that the corruption issue was actually a preliminary issue. But it can mean a greater likelihood of conflating preliminary and merits issues than might be the case if there were bifurcation, as tended to be the case more often some ten years ago.

Perhaps also of great interest in the context of the question, Is it "broken" or not and is it worth fixing, is the issue of proof. The Rompetrol v Romania ICSID decision from 2013 was cited for the notion that the question of burden of proof is absolute and fairly straightforward. And yet we have a variety of explanations of how, both in common and civil law systems, there is no consensus as to what the burden is or should be, what the standard of proof should properly be, when should the burden be reversed or shifted and when not. And we also explored the fact that, partly for understandable reasons, which law may apply to these questions is not frequently addressed in awards at all or in any event with great precision. Is it a procedural issue? Is it a substantive issue? Is it linked to the lex arbitri? To the lex contractus? Is it the law of the place of performance where the corruption is alleged to have taken place? It has not clearly been tackled in any homogenous or discernible way. This in the face of a diversity of legal systems where burden of proof - even if we can understand conceptually what burden of proof means -does not enjoy consensus. As a result, we have vastly different approaches, as far as I can see, both in commercial and in investment arbitration, to whether, when, how early, and in what manner the tribunal even addresses this issue.

And this leads us to another issue that becomes clear: calls for more structured attention. What is the management role of the tribunal, and when does it assume that role, if at all, in discussing with the parties this thorny issue of burden of proof? Should the tribunal not address it and instead simply wait for the submissions of the parties as to what the burden is? Or, perhaps, the parties actually agree on the burden, on the standard, or both. And even if there is agreement of the parties, does the tribunal disagree and have a different view as to what the proper burden of proof or standard of proof - the fact that the parties have agreed does not necessarily mean that they have reached a correct or workable conclusion. And this all relates to the idea of the tribunal deciding, or at least addressing, such issues at the "earliest appropriate time." I did not say the "earliest time," but the earliest appropriate time, to consult with the parties as to issues of burden of proof, standard of proof, burden of persuasion.

Such consultation with the parties is something for which we actually already have the tools. We actually have a duty on the part of the arbitral tribunal in Article 2 of the 2010 IBA Rules of Evidence to consult with the parties at the earliest appropriate time. The appropriate time might be several successive occasions as to issues respecting proof, taking of evidence, the burden of proof and the standard of proof. The difficulty, of course, is that we have different parties from different cultures. As a result, often, particularly at the early stage of the arbitration in the original request and the original answer, they are submitting pleadings with vastly different levels of detail, vastly different treatments of evidence. We have the classical German approach where, particularly if the claimant had the time, the opportunity and the organizational skills, and even if it did not, it basically submits almost its entire claim at the inception: detailed facts, copious legal authority, specific offers of documentary and witness evidence, actual written witness statements with chapter and verse as to each and every meeting, each and every allegation and offer proof. That would be one extreme. The other end of the spectrum might be sometimes, and not because of lack of organization or sloth but as a result of a tactical decision, the classical American notice pleading: the party knows exactly what it wants to say and how, but does so in a few pages of high-level allegations or defenses, for the reason that it assumes that there will be extensive discovery of documents and witnesses in the course of the arbitration. Or something in the middle.

What is the consequence for the intersection between corruption and arbitration? Depending on how useful to the tribunal that file is, particularly at the early stage, the tribunal will be in a better or worse position to enter into that consultation with the parties as to burden of proof or standard of proof. Its learning curve will be vastly different depending upon the quantity and quality of the file transmitted to it at an early stage. But particularly where the file was perhaps not "useful" for whatever reason, there may be all the more justification for the tribunal to engage early with the parties as to these issues of burden and standard of proof, especially where corruption seems to be in the mix.

This leads us to the arbitrators' investigative and reporting rights and duties. Does the tribunal have a right, does it have a duty, to investigate suspicions or allegations of corruption? Does it have a right, does it have a duty, to report suspicions, admissions or findings, and if so to whom? As was stated during the debate, there is lack of agreement as to whether there is such a duty. There is perhaps more consensus as to whether there is such a right on the part of the arbitrator. We know that, generally speaking, the arbitrator has the right to investigate and ascertain the facts of the case with all appropriate means. Does he or she actually have a duty to investigate something that does not "seem right," let alone a duty to report, and to whom, the suspicion, or even an admission? At the annual meeting we did not reach a concrete conclusion, nor did I expect that we would.

At the same time, we did appear to have agreement as to the relationship to confidentiality. Thus, if there is a right or a duty that may be linked to public policy, which is related to avoidance by the tribunal of being instrumentalized by the parties, this may certainly trump and supersede any competing duty of confidentiality. I gave the example of a Singapore statute of recent vintage, the Corruption, Drug Trafficking and Other Serious Crimes Act, which would at least apply in the case of a Singapore seat of arbitration. Query whether with the increase in arbitrations in which corruption is alleged, this is likely to increase the frequency with which parties invite or request arbitral tribunals, whether commercial or investment, to investigate corruption. Is it likely to give rise to an increase in invitations or demands from the parties to report to an arbitral institution or a statutory authority? Is it likely to give rise to a greater initiative on the part of arbitral tribunals to investigate or report, or both, ex officio?

It is not quite clear at least to me, notwithstanding the extreme importance of avoiding and combating corruption, that there really is a groundswell of support for such greater initiative. I do not see a groundswell among parties, desiring an increase in this kind of investigative and/or reporting activity by the tribunal. I also do not see a groundswell of interest on the part of tribunals, with tribunals being more willing and more desirous than 15 or 20 years ago to take on these investigative and reporting rights and/or duties. Interestingly, there is the 2013 ICSID decision in Metal-Tech Ltd. v Republic of Uzbekistan, in which the tribunal did not engage in enormous detail respecting burden of proof or standard of proof, but at the same time it exhibited acute awareness of the tension or possible tension between, on the one hand, due process, and on the other hand, ultra petita. It showed sensitivity to the challenge of undertaking an investigation sua sponte without seeming to violate the equal treatment and due process rights of the parties. The language used by the tribunal in the procedural orders, as they were replicated in the award itself, was carefully phrased: the tribunal was inviting the parties, and particularly the party who may have engaged in untoward behavior, to assist the tribunal to clarify certain things that were on the mind of the tribunal. That probably was a good and effective way to thread the needle in view of the tension between due process, equal treatment, ultra petita and, where it applies, manifest excess of powers in the ICSID context.

Finally we arrived at the end game, the validity of the award, and its enforceability. In the context of corruption and the validity of the award, whether at the seat or elsewhere, we have a number of interesting commercial arbitration decisions, such as Soleimany v Soleimany (1998), OTV v Hilmarton in 1999, Westacre v Jugoimport (1999), and other decisions in England, France and Switzerland. And even those decisions, as they relate to English law and English courts, have not clearly contributed to a consistent and fully harmonizable practice or jurisprudence in one single country. Thus there will still be distinctions drawn between whether the award is a domestic award or a foreign award, whether English substantive law did or did not apply to the award, whether it was a foreign award being imported back into England, etc.. There will still be some "skinning of the cat," which is not always easy. What is easy probably, both in commercial and investment arbitration, is to conclude, as I think almost everyone speaking today has, is that corruption and bribery are in violation of "transnational public policy" or "international public policy," assuming these institutions exist. There is debate about these notions, but the answer is probably, in my estimation, yes, they exist and yes, they are against one or both of those bodies of public policy.

But one size will not necessarily fit all and harmonization is not always possible or desirable. In the commercial context, we will have commercial contracts subject to different substantive laws. Even in arguably one of the two or three most important commercial arbitration venues globally, Switzerland, we have a treatment of intermediary contracts and certain kinds of consulting contracts that is different than in jurisdictions other than Switzerland. So even in the commercial arbitration field, we are not able to have a full harmonization. Yet not being able to have a full harmonization does not mean that it is "broken." Indeed we do not necessarily aspire to one-size-fits-all or to some kind of a bland uniformity in this area. Moving from the commercial to the investment arbitration context, with respect to validity and enforceability one could make the argument that we do aspire towards more harmonization, not necessarily one-size-fits-all, but more predictability particularly with recurring public international law issues. Thus we are often concerned with identical or substantially similar formulations in bilateral investment treaties, including, e.g., "in accordance with host state law." We are dealing with arbitrations where, basically, the same country is involved in a series of different arbitrations in which that BIT formulation - whether first its BIT with Switzerland, then its BIT with Germany, then its BIT with the Netherlands - is essentially an identical provision, and all drafted in the same "generation" of BITs. Surely, in that particular situation, it is not unrealistic to aspire towards more harmonization, not identity of results but more harmonization, than is realistically possible in the commercial realm.

And this leads to the interesting issue of consequences in the arbitration in the case of corruption allegations that do not quite lead to corruption findings. Other than the tribunal's wide discretion to allocate costs as it sees fit, what sanctions or other actions may it take, irrespective of whether it can or does investigate, can or does report? Most recently, we have the cost decision in Metal-Tech. It is indeed notable. There the parties were ordered to bear their own legal fees and to share equally the fees and costs of the tribunal and ICSID, on the grounds of the respondent State's "participation" in creating the situation, namely the tainting of the investment by illegal activities, that led to the dismissal of the claims against it. We also already have provisions for sanctions or consideration of costs in certain arbitral rules and in the IBA Rules of Evidence. These are not always applied. Put another way, it is not always apparent whether or how they have been applied, depending upon how detailed or non-detailed the cost component of an award is. We are not always able to discern what went into the thinking of the Arbitral Tribunal in assigning costs. In this regard, we are aware of the debate that we have had for ten or fifteen years, which ensued more or less with the International Thunderbird Gaming v United Mexican States NAFTA award in 2006, as to how much detail the tribunal should engage in to explain its decision respecting allocation of costs. In certain cases, more detail, more insight into the way in which these costs awards are reached could be of some benefit even if each one is obviously sui generis.

On that note, I conclude. We have raised and analyzed many of the key issues in the intersection between corruption and arbitration. We have determined some of the similarities and the differences in the case of commercial versus investment arbitration. We have ascertained where harmonization is desirable, where it is possible, and where not. We have identified best practices, worst practices, rights and duties of the tribunal and of the parties. The issue is here to stay, the challenges as well, but the exhaustive discussion at the annual meeting have surely contributed to equipping parties, counsel and arbitrators with better and additional tools to meet the challenge head on. In commercial arbitration, questions of enforceability in relation to corruption-related awards are achieving more consistency and harmonization, not less, but outliers will remain, and why not? The goal cannot realistically be one size fits all even on this core issue. In the investment arbitration sphere, one size fits all might be more appealing on the surface, since we are largely talking about public international law principles, and not in the main about individual host state laws even though they are important as well.

What is realistic and feasible is that in the commercial sphere the enforceability under the lex arbitri remains the first and perhaps last port of call, under the territoriality principle, since otherwise the lex arbitri is denuded of importance. In the investment sphere, and without a juridical seat, enforceability may indeed be seen somewhat more broadly, and here the desire to achieve more predictability in deciding the consequences for the award is likely greater, while the achievability of more predictability is a much harder thing. Using a sledgehammer to apply one-size-fits-all principles to vastly different factual and treaty contexts will not work. But having a steady hand to apply a general condemnation of corruption on both claimant and respondent, in a situation where third- and fourthgeneration BITs do have more similarities than differences, is entirely realistic. The discussion here surely contributes to that effort, all the more so in the context of the current debate, most notably in Germany and the US, as to the future of TTIP and the purported unworkability of international investment dispute settlement for the coming years.