论国际投资仲裁中的腐败抗辩及其处理

Corruption Defense in International Investor-State Arbitration and the Treatment

腐败是破坏国际投资环境的重要问题之一,"腐败抗辩"的提出使得越来越多的跨国腐败进入国际投资仲裁庭的视野,本应对打击跨国腐败起到积极的作用。但国际投资仲裁目前对"腐败抗辩"的主流做法容易导致投资者和东道国之间对腐败行为的责任分配不公,仅由投资者一方承担双方共同的腐败行为造成的负面影响,从而导致"腐败抗辩"被东道国滥用,反而有碍于打击跨国腐败。为了避免这种不利结果,应当引入过错分担标准、选择更为适当的证明标准并加强国际投资仲裁与国际反跨国商业贿赂机制的联系,以更好地处理国际投资仲裁中的"腐败抗辩",使国际投资仲裁在国际反腐败机制中发挥更积极的作用。

Corruption is one of the major issues that undermines international investment environment. " Corruption defense" in international investment arbitration exposed more and more corruption incidents to the arbitral tribunal and therefore was supposed to help fight against cross-border corruption.However,the current mainstream approach to handle " corruption defense" in international investment arbitration is likely to lead to an unfair distribution of responsibilities for corruption between investors and host states that only the investors are bearing the negative impact caused by their mutual corruption behaviors,thus " corruption defense" is easily abused by the host states and would even hinder the international anti-corruption agenda. In order to avoid such unfavorable results,contributory fault standards should be introduced,more appropriate standard of proof should be applied,and the interaction between international investment arbitration and international anti-transnational commercial bribery mechanisms should be strengthened so that " corruption defenses" in international investment arbitration could be handled better and international investment arbitration could play a more active role in the international anti-corruption mechanism.