International Commercial Arbitration and Money Laundering : Problems that arise and how they should be resolved

Detta är en Uppsats för yrkesexamina på avancerad nivå från Uppsala universitet/Juridiska institutionen



This thesis is concerned with examining the intersection between the areas of international commercial arbitration and money laundering. There are various points of connectivity between the two and the aim of this thesis is to discern how an arbitrator should conduct arbitral proceedings involving money laundering. For this purpose, a few selected topics have been examined. The practical challenges arising out of these topics, as well as the tools available to arbitrators to face them have been analysed in turn. After a brief inquiry into the nature of international commercial arbitration, money laundering and the ways that they come together, the topics of jurisdiction, the norms applicable to the substance of the dispute, and matters of evidence are subject to discussion.

In studying these topics, a recurring theme, which goes to the very heart of the intersection between the seemingly odd areas of international commercial arbitration and money laundering, is discernible. In practically all of the challenges that an arbitrator will face when adjudicating a dispute involving money laundering a conflict of interest between the pivotal principle of party autonomy and other interests will arise. These interests originate from the public policy concerns vested in countering money laundering and the criminal law nature of this phenomenon. The tools which the arbitrator deem to be applicable as well as the conduct that he might choose in regards to the topics discussed, very much depend on his perception of the role that international arbitrators ought to assume in this conflict. Keeping these conceptual building blocks in mind the author, whilst examining the relevant legal instrument, case law and legal commentary, reaches the conclusion that arbitral tribunals ought to claim jurisdiction over disputes arising out of contracts tainted by money laundering in the majority of cases. The author also reaches the conclusion that there are other norms than the lex contractus that can be applied to the substance of the dispute and that the willingness to apply them will depend on the attitude of the arbitrator. Similarly, the arbitrator could, and arguably should, investigate the issue of money laundering of his own accord, albeit with a few important reservations. The rules of evidence, especially those of the burden of proof and standard of proof, should be tailored to reflect the nature of the complex offence of money laundering. Finally, the eventual possibility for an international arbitrator to report suspicions of money laundering is touched upon.

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