Provisional measures in international arbitration as a response to parallel criminal proceedings

Date

2019-05-01

Authors

Galagan, Dmytro

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Abstract

The central subject of this thesis is the power of an arbitral tribunal to order a state to refrain from pursuing criminal proceedings against a commercial enterprise if such an investigation constitutes an abuse of power or an attempt to obtain an unfair procedural advantage or harass of the investor, rather than a legitimate exercise of the state’s police power. The first chapter addresses the nature of international arbitration and how different theoretical models may help to explain the limits of the arbitrators’ adjudicative powers and the attitude of various national legal orders and domestic courts to arbitration agreements, proceedings and awards. The second chapter analyzes different approaches to investment arbitration as a form of global governance, and reviews arbitral jurisprudence on the interaction between protection of foreign investment and states’ power to conduct criminal proceedings. The third chapter focuses on jurisprudence of the International Court of Justice (ICJ) and various arbitral tribunals on provisional measures affecting the conduct of criminal proceedings. It identifies key developments and trends in the jurisprudence, especially with respect to the rights that could be protected by such measures. Finally, the fourth chapter addresses the question how to balance the states’ right (or even an obligation) to combat global corruption and crime, one the one hand, and the due process rights accorded to private entities when their commercial and investment disputes are resolved through international arbitration, on the other hand.

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Keywords

international arbitration, arbitration, investment arbitration, ISDS, provisional measures, criminal proceedings

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