| Corruption in international investment has intensified in recent years with the development of economic globalization.The International Investment Dispute Settlement C enter(hereinafter referred to as "ICSID")is the world’s first arbitration agency specialized in the settlement of international investment disputes.In recent years,ICSID arbitration has been increasingly common in the host country for corruption defenses.Corruption defense has a defensive function.When an investor’s investment is obtained through a corrupt act,the host country can put forward a corruption defense to hinder the realization of investor claims.In ICSID arbitration,the arbitral tribunal will generally rule that the corruption-related investment does not have legitimacy on the ground that the corruption-related investment does not have legality.The tendency of the arbitral tribunal to provoke a lot of controversy.First,the Washington Convention is ambiguous as to whether the arbitral tribunal can govern investments involving corruption-Secondly.the "investment legitimacy" clause in bilateral investment agreements is also somewhat inclusive in the jurisdiction of investments involving corruption.The arbitral tribunal lacks a solid theoretical basis for refusing to exercise jurisdiction over investments involving corruption.In addition to jurisdiction disputes,the host country’s corruption plea has also caused disputes over the ownership of corruption.Because of the two-way nature of bribery,investors’ bribes are in many cases due to solicitations from public officials in the host country.For this reason,investors often argue that the host country should bear national responsibility for the bribery of its public officials.The ICSID arbitral tribunal currently tends to believe that the bribery of public officials is for their own benefit rather than the state,so the responsibility for the bribery of public officials should not be attributed to the state.This tendency of the arbitral tribunal has also caused a lot of controversy.Although the solicitation of bribes is not within the scope of the duties of a public official,a public official soliciting a bribe in his capacity as a national public official can be regarded as a state act that violates its authority under the Draft Provisions on State Liability for Internationally Wrongful Acts.In addition,the solicitation of bribes by public officials violates the international obligations under the fair and equitable treatment provisions of the bilateral investment agreement,so the conduct should be attributed to the state.The arbitral tribunal’s ruling on the defense of corruption tends to be too biased to protect the interests of the host country,leading to an imbalance of interests between investors and the host country.On the one hand,the host country actually gains improper profits,on the other hand,it will mislead the host country’s anti-corruption policy.Faced with this dilemma,the arbitral tribunal can introduce the principle of fault distribution and make a fairer decision on the basis of full consideration of the respective responsibilities of investors and host countries in corruption.As China continues to encourage enterprises to "go global" and develop the "Belt and Road" itiative,the risk of corruption in Chinese companies’ overseas investments has also gradually increased.To this end,Chinese companies and the Chinese government should be more fully prepared to respond to hostile corruption defenses.Chinese companies must conduct a comprehensive investigation of the host country’s laws and regulations before investing overseas.The Chinese government should clarify the arbitrability of corruption disputes as well as the host country’s anti-corruption obligations and corresponding responsibilities for participating in corruption when signing BIT. |
