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Chief Justice Sundaresh Menon: Kaplan Lecture 2025
KAPLAN LECTURE 2025
“Corruption in International Arbitration: The Past, Present and Future”
Monday, 1 December 2025
The Honourable the Chief Justice Sundaresh Menon*
Supreme Court of Singapore
Professor Neil Kaplan CBE KC
Distinguished guests
Ladies and gentlemen
I. Introduction
1. Good evening. Let me first offer the heartfelt condolences of my country, my Judiciary and myself to the people of Hong Kong, and to the families and loved ones of the victims of the fire in Tai Po. We stand by you, we grieve with you, and we hold you in our hearts and prayers. We also thank the many who have risen and rallied together to show that the spirit of Hong Kong remains indomitable even in the face of such tragedy. The fact that this event is proceeding at this time is a sign of that.
2. Let me also thank Neil for that extremely generous and kind introduction, and for inviting me to deliver this lecture. It is a great honour. Since the inaugural lecture delivered in 2007, this stage has been graced by many illustrious speakers, including The Right Honourable the Lord Neuberger, who is with us this evening, the Honourable Yves Fortier KC, and most recently, the former Chief Justice of Hong Kong, the Honourable Geoffrey Ma.
3. That esteemed list reflects the standing and stature of the person in whose honour this lecture is given. Over the course of more than five decades, Neil has distinguished himself as a barrister, a judge, and perhaps most notably, as one of the leading figures in the world of international arbitration. Indeed, such has been his contribution to the development and growth of arbitration in Hong Kong that he is widely regarded as the “Father of Hong Kong Arbitration”. So, on behalf of all of us here tonight, thank you so much Neil for all that you have done.
4. As you heard from Neil, this evening, I will be speaking about the challenge of corruption in international arbitration. This is a subject that has attracted much attention and debate, perhaps especially after the recent decision of Mr Justice Robin Knowles in Nigeria v P&ID.1 But it is by no means a recent concern. Indeed, when Yves Fortier delivered the Kaplan Lecture of 2014, he spoke on this very subject and identified a “manifest reticence on the part of arbitrators … to act on evidence of corruption when it raises its ugly head”. He observed that corruption in international arbitration is “rarely outcome determinative”, and also that “positive findings of corruption in international arbitral decisions are very rare”.2
5. In the intervening years, there has been a growing recognition that arbitrators can and should do more to address issues of corruption in arbitration. This is perhaps best reflected in the ongoing work of the International Chamber of Commerce’s (or “ICC”) Task Force Addressing Issues of Corruption in International Arbitration, which in November last year released “detailed guidance on the identification and assessment of corruption in arbitration proceedings”. I will refer to this as the “Red Flags Document”.3
6. But despite this emerging consensus, many fundamental questions in this area continue to divide courts and commentators. I will focus this evening on three issues:
(a) First, what if any is the basis of a tribunal’s authority to investigate corruption of its own motion, in the specific situation where there are sufficiently manifest indicators of corruption on the record, but where neither party has raised the issue? To be clear, this is the paradigm situation that I am addressing, rather than cases where corruption has been pleaded and is therefore a live issue or, on the other hand, where there are no real indicators of corruption.
(b) Second, can and should arbitrators report suspicions of corruption to the public authorities?
(c) And third, what approach should supervisory courts take when reviewing cases involving corruption, bearing in mind considerations such as the principle of minimal curial intervention and the finality of arbitral awards?
7. My central thesis is that both arbitral tribunals and supervisory courts should adopt a more proactive and robust approach when dealing with issues of corruption in international arbitration, although this must be kept within principled and clearly defined limits. My lecture will proceed in three parts, with broad reference to the past, present and future:
(a) To set the context for our discussion, I will first explore how the prevailing attitude to issues of corruption and how these should be dealt with in international arbitration has changed and evolved over time.
(b) Next, I will address the three key issues that I have just outlined and suggest how they might potentially be addressed. I should emphasise that these are extrajudicial reflections which might well change with the benefit of assistance in an appropriate case.
(c) And finally, I will highlight the vital need for all our jurisdictions to address these issues – and more broadly, matters of transnational commercial law – with greater clarity, consistency and coherence, focusing in particular on the role of the courts.
8. I should also be clear that my primary focus today is on corruption in the underlying contract or arbitration agreement, as opposed to corruption in the arbitral process itself, such as when there is bribery of witnesses, counsel or even tribunal members. The latter category provides well-established grounds for setting aside or refusing to enforce awards, and it has not generally given rise to some of the difficult conceptual questions that will be discussed this evening.
II. The Past: The Changing Face of Corruption
9. Let me begin with a historical perspective. For a long time, issues involving corruption were considered unsuitable for resolution through the arbitral process, and were even deemed non-arbitrable. Several reasons had been advanced for this, but at its core, the underlying concern could be traced to a dissonance between the public dimensions of corruption and the private character of arbitration.4
10. On the one hand, arbitration is traditionally seen as a private method of dispute resolution that concerns only the rights and interests of the parties who have consented to the arbitral process. It has even been referred to as the “quintessential paradigm of private justice”.5 Corruption, on the other hand, engages broader public interests, especially when public actors are involved, and it attracts criminal sanctions that may only be imposed by the courts. Thus, as with other areas of the law which engage the public interest, such as competition law, intellectual property law, and insolvency law,6 claims involving corruption were once considered to be non-arbitrable.7 As Gary Born observes, “[w]here the issue of bribery was raised previously in arbitrations, the response by tribunals often was to find a lack of jurisdiction over the dispute”.8
11. Additionally, there were also practical difficulties in adjudicating issues of corruption in the course of an arbitration. Tribunals, as private and consensual bodies, have limited powers to compel the production of evidence, in contrast to the enforcement powers of the state. Furthermore, for most cases, confidentiality is an important feature of the arbitral process. This sits uncomfortably both with specific actions that the tribunal may wish to take, such as the reporting of suspected criminal activity to the authorities, and also with the general desire for transparency in combatting corruption.9
12. But this traditional view has over the last few decades shifted and settled in favour of a widespread acceptance that issues of corruption are arbitrable, particularly when they arise in the context of whether or not they affect civil liability.10 I highlight two cases that illustrate this evolution. The first is the decision of the High Court of England and Wales in Westacre Investments (HC), which was upheld on appeal.11 The defendants in an arbitration there sought to resist the enforcement of an arbitral award, contending that the tribunal lacked jurisdiction to determine the dispute because the claim arose from a consultancy agreement that had been entered into for corrupt purposes. At first instance, Mr Justice Colman rejected this submission, holding that even where an underlying contract is illegal at common law or under statute, the arbitration agreement ancillary to that contract may, depending on the nature of the illegality in question, remain capable of conferring jurisdiction on the arbitrators to determine whether the particular illegality presented renders the contract unenforceable.12 Insofar as corruption was concerned, he considered that “the public policy of sustaining international arbitration awards on the facts of [that] case outweigh[ed] the public policy in discouraging international commercial corruption”.13 The tribunal was therefore found to have jurisdiction to determine whether the contract was illegal, and the court would not reopen the tribunal’s finding that it was not illegal unless the tribunal had ignored “palpable and indisputable illegality”.14 I will return to the applicable standard that should be adopted when I consider the role of the supervisory courts.
13. To similar effect is the decision of the US District Court for the Southern District of New York in Development Bank of Philippines v Chemtex Fibers, where the plaintiff brought claims under the Racketeer Influenced and Corrupt Organizations Act (or “RICO Act”). Departing from the traditional position that claims under the RICO Act were not arbitrable, the court held that the parties’ agreement to arbitrate ought to be enforced due to “concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the needs of the international commercial system for predictability in the resolution of disputes”.15
14. What explains this shift? If we were to take a step back, the question of arbitrability is fundamentally one of public policy. As the Singapore Court of Appeal recently reiterated in Anupam Mittal, “the essential criterion of non-arbitrability is whether the subject matter of the dispute is of such a nature as to make it contrary to public policy for that dispute to be resolved by arbitration”.16 But public policy is not static or immutable. Over the past decades, arbitration has grown tremendously in popularity and is now overwhelmingly the preferred method for resolving cross-border commercial disputes.17 In addition, given the size and scale of many of the contracts and the related claims that are resolved in arbitration, an inability on the part of tribunals to consider questions of corruption seems to significantly undermine the effectiveness and attractiveness of arbitration. Taken together with other considerations such as the desirability of avoiding the fragmentation of disputes where possible, and the growing acceptance of the competence and capabilities of arbitral tribunals to determine issues of corruption when these have a bearing on civil liability, these developments have collectively strengthened the public policy in favour of the enforcement of arbitration agreements even where issues of corruption are raised.
15. At the same time, there have been some developments in the arbitration landscape that may help to mitigate some of the practical difficulties I have outlined, such that arbitrators may be somewhat better equipped to deal with issues of corruption. These developments include the ability to issue subpoenas,18 and the possibility of having recourse to the seat court to compel witness testimony and the production of documents.19 To be clear, these powers are not universally applicable in all jurisdictions, nor do they replicate the coercive powers of national courts or enforcement agencies. But they do offer some useful tools for tribunals to manage what can be a delicate inquiry into matters on which the parties, for obvious reasons, may not be forthcoming.
III. The Present: Addressing Corruption during the Arbitral Process
16. While the current broad consensus on the arbitrability of issues of corruption is to be welcomed, there remains some fundamental questions of practical importance that are still contested. It is to these that I now turn.
A. Basis of tribunal’s authority to investigate of its own motion
17. The first and foundational question is whether there is any basis at all for a tribunal to investigate corruption on its own motion. It is now largely uncontroversial that a tribunal can and indeed must determine issues of corruption where these have been raised by the parties for determination.20 But where the parties have not alleged corruption, or, going further, have even expressly agreed that the tribunal should not look into it, can the tribunal nevertheless do so?
18. On one view, such a step might amount to the tribunal acting in excess of its jurisdiction, potentially giving rise to a challenge against the award.21 I suggest however that the better view is that the tribunal can and should investigate further when it has good reason to suspect that corruption might affect the relief sought.
19. First of all, this would be part and parcel of the tribunal’s core mandate to address issues that would affect the validity of the claim before it. These would include issues of illegality, public policy or mandatory law.22 If evidence of illegality emerges over the course of the hearing that could have a bearing on the liability of a party or the relief sought, then, far from overstepping its prescribed boundaries, the tribunal might be said to have failed to properly determine the dispute submitted to it if it did not address those issues.
20. This understanding of the tribunal’s role is reinforced by the tribunal’s duty to strive to render an enforceable award, a duty that is enshrined in most major institutional rules (including those of the HKIAC and the SIAC).23 It should be noted that it is well established that both the seat court and the enforcement court are generally able to review issues of international public policy of their own motion. We see this power reflected in instruments such as the Model Law24 and the New York Convention.25 Broadly, the concept of international public policy refers to a state’s most fundamental values, which must not be breached even in cases that have little or no actual connection to that jurisdiction.26 It is relatively uncontroversial that corruption would fall within the scope of international public policy. Therefore, if there are sufficiently manifest red flags suggesting corruption, then even if the parties do not raise the issue or are reluctant to address it, a tribunal would be remiss to ignore it given that this might result in what might prove ultimately to be an unenforceable award.
21. The World Duty Free case illustrates the dangers when indicators of corruption are not properly investigated in the arbitral process. The dispute began when World Duty Free commenced an ICSID arbitration against Kenya for breaches of a lease agreement. The tribunal rejected the claim, finding that the lease agreement had been obtained by a US$2m bribe paid to the former President of Kenya, and held that it would therefore violate international public policy to enforce the agreement.27 Undeterred, World Duty Free then commenced a second arbitration before an ad hoc tribunal under the same tainted lease agreement, but against a different defendant – the Kenya Airports Authority. It succeeded in obtaining an award for about US$50m in the second arbitration. However, that award was eventually set aside by the Kenyan High Court on the ground of public policy. Significantly, neither party had raised the issue of corruption in the second arbitration. Nevertheless, the Court held that once the ICSID award was brought to the second tribunal’s attention, it should have paused and interrogated the matter before issuing an award that ran contrary to public policy.28
22. Another reason in support of a tribunal’s authority to investigate corruption of its own motion is to prevent itself from being used as an instrument of fraud. Arbitrators are private adjudicators. But they are also an integral part of the international legal framework that is in place for resolving cross-border commercial disputes. This is a concept that I have referred to as the transnational system of commercial justice.29 And because the overwhelming majority of cross-border commercial disputes are resolved through arbitration, it is a fundamental part of that transnational system which is supported by widely subscribed instruments like the New York Convention and the Model Law. Within this system, I suggest there is a public dimension to the role of an arbitrator who presides over quasi-judicial proceedings, and who is empowered to issue binding decisions which may be enforced as if they were judgments issued by courts.30 That role must be carried out in a way that strengthens rather than subverts arbitration’s legitimacy and standing within the broader rules-based international order.
23. The reasoning of the Singapore International Commercial Court (or “SICC”) in Lao Holdings31 captures this point aptly. During the arbitrations, the defendant sought to admit newly-discovered evidence of bribery, corruption and fraud, in spite of an agreement between the parties not to admit any further evidence after a certain point in time. The tribunals read into the parties’ agreement an exception for “compelling circumstances” and allowed the fresh evidence to be adduced. The plaintiffs then sought to set aside the awards in the SICC, arguing among other things that the tribunals’ decision to admit the new evidence contravened the parties’ agreed procedure. The SICC rejected this argument and stated that parties could not by prior agreement prevent a tribunal from reviewing evidence of corruption. Otherwise, “parties could enter into procedural agreements deliberately or unintentionally precluding evidence of corruption and arbitral tribunals might make awards supporting or enforcing that corruption”.32 The SICC observed that as with national courts, arbitral tribunals have a public duty to consider corruption.33 This duty arises not only when the tribunal has to deal with allegations of corruption raised by the parties, but more generally, where it is faced with evidence of possible corruption.34 It seems that because of the public dimension of arbitration, which stems from its role as an integral part of the transnational system for the administration of commercial justice, even the agreement of the parties cannot be allowed to shield from scrutiny matters that offend international public policy, such as fraud or corruption.
B. Limits to the tribunal’s authority to investigate
24. However, there are limits to this. Tribunals are not and should not be expected to proactively investigate the possibility of corruption in every case. That would clearly go too far. I would respectfully suggest that there are at least two preconditions that must be satisfied.35
25. The first is relevance. The suspected illegality must have a bearing on the validity of the claims in dispute. Ultimately, the central role of the tribunal is to resolve the dispute submitted to it and not to investigate or prosecute any possible wrongdoing.36 As explained earlier, among the justifications for the tribunal’s authority to investigate corruption is that any potential illegality may invalidate the claim or render the award unenforceable. By the same token, the tribunal risks acting in excess of its jurisdiction if it pursues a line of inquiry that is unrelated to the dispute.
26. The second precondition is that there should be sufficiently manifest indicators of corruption, or “red flags”, on the face of the record. It would greatly diminish the efficacy and efficiency of arbitration if tribunals were to pursue investigations when there was no basis for harbouring even a reasonable suspicion of corruption. For the same reason, a tribunal’s approach need not be a binary one, treating the threshold of suspicion as one that is either crossed or not crossed. Rather, I suggest that a tribunal’s response can be proportionate to the nature of the issue it is faced with. The more concerning the nature and extent of the indicators of corruption, the more rigorous might be the inquires that the tribunal might consider undertaking.
27. As to what should put the tribunal on alert, the Red Flags Document that I referred to provides valuable guidance. The document distinguishes between general and specific red flags. General red flags relate to concerns about the general climate of corruption in a country or industry, whereas specific red flags relate to concerns such as (a) a party’s history of corruption-related prosecutions or convictions; (b) the involvement of public officials in selecting or recommending business opportunities; (c) opaque corporate structures such as shell companies in offshore havens; and (d) a party’s apparent lack of qualifications for performing the services it offers. As the Task Force recognises, general red flags alone would generally be unlikely to trigger further examination by a tribunal,37 but specific red flags will likely carry greater weight in this context.38
C. Nature and extent of the tribunal’s investigation
28. This brings me to the question of how tribunals could respond once they are put on notice by red flags in the proceedings. While paying attention to the need for a proportionate, contextual and flexible approach, I suggest that it is helpful to think of the inquiry as one that comprises broadly escalating stages, with various procedural and evidentiary tools that may be deployed at each stage.
29. The inquiry might begin simply with the tribunal inviting explanations for apparent irregularities. Seemingly suspicious circumstances could have legitimate explanations that counsel can readily provide without having to call for additional documents or witnesses.
30. Where further evidence is thought to be required, the tribunal might consider inviting the parties to adduce such evidence, and give the appropriate directions. Many institutional rules confer on tribunals the power to conduct necessary inquiries into issues not directly raised by the parties, and to order the production of documents or testimony that the tribunal considers relevant.39 If necessary, such as if a party is not forthcoming or insists on a formal subpoena, a tribunal could request the assistance of the seat court in taking evidence under the relevant arbitration laws.40 In Singapore, for instance, courts may issue orders to compel witnesses to give evidence before a tribunal, or for the production of documents.41
31. If evidence is still not forthcoming, the tribunal may in appropriate cases draw adverse inferences from a party’s failure to produce the relevant evidence requested by the tribunal.42 Because corrupt activity is by its nature often concealed, and because there are limits on a tribunal’s ability to compel parties to comply with production requests, the appropriate use of adverse inferences can be critical in arriving at a finding of corruption.43 The prospect of such inferences can provide a powerful incentive for the parties to try to address the tribunal’s requests and concerns at the appropriate juncture.44
32. Of course, before a tribunal makes any inferences or findings, it must give the parties clear warning and an opportunity to respond lest it finds itself at the wrong end of a natural justice challenge.45
33. The case of Metal-Tech Ltd v The Republic of Uzbekistan46 offers a useful example of the approach that tribunals could adopt. There, although the respondent raised allegations of corruption, it did not initially adduce sufficient evidence. The tribunal’s suspicions were triggered when facts concerning the payment of substantial sums emerged in the course of the hearings. The tribunal responded by making “further inquiries” about the reason for such payments, and giving the claimant the opportunity to substantiate the reality and legitimacy of the services it was said to have been paid for.47 When the claimant failed to do so, the tribunal inferred that no legitimate services had in fact been provided, and ultimately dismissed the claims.48
34. Greater difficulties may arise where corruption seems apparent on the face of the record, but the parties refuse to cooperate in addressing the tribunal’s inquiries, or even instruct the tribunal not to consider the issue on the basis that the parties have agreed that there is no question of corruption. There are two potential obstacles in such cases.
35. The first concerns the tribunal’s jurisdiction. It might be argued that the tribunal has no jurisdiction to go behind the parties’ agreed understanding that there was no corruption, given that the tribunal derives its jurisdiction from the agreement of the parties.49 However, as I have already suggested, this line of reasoning may not apply to issues of corruption if we accept that there is a higher public policy at stake. Otherwise, it could give rise to an untenable situation where the parties could simply agree that there was no corruption – despite sufficiently manifest indicators to the contrary – and effectively use the arbitration process to launder their obligations under a corrupt contract into an internationally recognised award. As I mentioned, in Lao Holdings, the parties did have a procedural agreement to exclude further evidence, though not, it seems, in order to prevent scrutiny of possible corruption, and the court held this could not limit the tribunal’s authority to look into evidence of corruption.50
36. The second potential difficulty concerns issues of waiver or abuse of process. It might be argued that a party who initially disclaimed corruption during the arbitration should not be permitted to raise it before the courts at the post-award stage. But as I mentioned, the public policy ground is of a fundamentally different character from the other grounds of challenge, in that the courts are generally able to review issues of public policy of their own motion regardless of whether the parties have raised them. Thus, even if it could notionally amount to an abuse for the party to raise the issue of corruption belatedly, the court could nonetheless take the point on its own motion. This does not mean that such tactical behaviour should go without consequences. Courts could, for instance, consider imposing cost consequences to deter tactical hedging from parties who strategically withhold corruption allegations until the post-award stage.
D. Nigeria v P&ID
37. Let me then return to Nigeria v P&ID, which provides a useful case study for discussion. The case concerned a Gas Supply and Processing Agreement between a BVI company known as Process and Industrial Developments Limited (or “P&ID”) and the Federal Government of Nigeria. Under this agreement, Nigeria was to supply wet gas to processing facilities constructed by P&ID. However, neither side performed their obligations. P&ID then commenced arbitration against Nigeria and obtained a final award of around US$6.6bn – which by any measure is a staggering sum, especially given that P&ID had itself failed to construct any gas processing facilities.51
38. After the final award was issued against Nigeria, Nigeria obtained discovery against P&ID in various courts around the world. Armed with the new evidence, Nigeria sought to set aside the award on liability and the final award (collectively, “the Awards”) before the English Commercial Court. It alleged that P&ID had engaged in corruption, bribery and perjury in both the underlying agreement and during the arbitration itself. Following a trial that lasted over eight weeks, Mr Justice Knowles found that P&ID had presented false evidence by concealing the bribes it had paid in connection with the underlying agreement, continued to make corrupt payments during the arbitral process, and improperly retained Nigeria’s privileged legal documents. The Awards were therefore set aside on the basis that they were obtained by fraud and were contrary to public policy.52
39. Although the Awards were set aside on these specific grounds, Mr Justice Knowles made some broader observations on the approach of the tribunal, which he described as “very traditional”. In particular, he questioned whether the tribunal was “stuck with what parties did or did not appear to bring forward” and whether it “could and should … have been more direct and interventionist”.53 That is precisely the question we are considering today.
40. In this regard, if we were to consider the ICC’s Red Flags Document, we would find that many of the red flags mentioned there appear to have been present in the case. I will highlight three of these:
(a) First, the agreement was, on its face, “deeply suspicious” and “remarkably lacking” in detail.54 In the words of Justice Knowles, the 20-page agreement “better deserve[d] the description of an outline rather than a fully developed contract for a 20 year, multi-billion US dollar project”.55
(b) Second, the agreement was framed in “catastrophic terms” for Nigeria.56 Nigeria had an “essentially unqualified obligation” to deliver gas for processing that was not conditional upon P&ID’s obligation to construct the necessary gas processing facilities.57
(c) And third, Nigeria had entered into the agreement with a BVI company that had “no apparent assets, no obvious industry experience, and no other credentials to suggest that it would be suitable to operate such a sophisticated arrangement”.58
41. Under these circumstances, there is a very reasonable basis for thinking that the tribunal in Nigeria v P&ID ought to have investigated whether there was corruption in the underlying agreement that might have invalidated the claim. The two preconditions that I have suggested – relevance and the presence of sufficiently manifest indicators of corruption – appear to have been satisfied. I think it is fair to say that a more proactive and robust approach could and probably should have been adopted, in line with what I have proposed this evening.
E. Power to report corruption to the authorities
42. That brings me to a related question which is of considerable practical importance. This concerns whether a tribunal has the duty or power to report suspicions of corruption to the relevant authorities, or whether their duty of confidentiality would prevent their doing so.
43. Most leading institutional rules explicitly acknowledge that confidentiality obligations are subject to overriding legal requirements. They typically provide that confidentiality is subject to “compliance with the provisions of the laws of any jurisdiction” or disclosure to authorities which a party is “obliged by law to make”. These rules recognise that the duty of confidentiality is not absolute and is overridden by mandatory legal obligations. But not all jurisdictions impose a duty or obligation to report corruption or suspected corruption.
44. Let me touch on the position in Singapore, which has been described as somewhat unique.59 There are two provisions that impose duties to report criminal conduct. First, s 424 of the Criminal Procedure Code 2010 requires every person aware of the commission of certain offences60– including certain corruption offences – to inform the police. Second, s 45 of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (or “CDSA”) imposes a duty to report on a person who in the course of the person’s trade, profession, business or employment knows or has reasonable grounds to suspect that property was used in connection with any act which may constitute criminal conduct, and this includes the offence of corruption.61 Both provisions provide for the defence of a reasonable excuse, although whether arbitrators can avail themselves of this defence might be said to be untested.
45. In the case of s 45 of the CDSA, Singapore has provided for the particular position of arbitrators by introducing an amendment in 2014.This stipulates first that it will not be an offence “for an arbitrator to fail to disclose any information or other matter which came to the arbitrator's attention in the course of any arbitral proceedings in which the arbitrator acted as an arbitrator”.62 But the amendments do not stop there. Section 45(7) provides that where a person does make the relevant disclosure in good faith, “the disclosure is not to be treated as a breach of any restriction upon the disclosure imposed by law, contract or rules of professional conduct and the person shall not be liable for any loss arising out of the disclosure or any act or omission in consequence of the disclosure.” In short, the position in Singapore has been described as placing the onus on the arbitrator to decide whether or not to report, while conferring statutory protections both ways.63
46. In jurisdictions such as Singapore which seem to place this discretion in the hands of arbitrators, what should guide their decision? I suggest that, in general, arbitrators ought to report corruption or suspected corruption to the relevant public authorities that might appear to have jurisdiction to prosecute the possible illegality.64 I am not saying that they have a duty or obligation to do so, but they clearly have the power to report corrupt activity, and should exercise that power where it is not expressly prohibited by the applicable laws. I say this because as a matter of first principles, the obligation of confidentiality exists to afford the parties a private mode of dispute resolution, surely for legitimate goals. The protection does not exist to shield corruption or other forms of illegal activity.
47. Further, while confidentiality is undoubtedly regarded as one of arbitration’s core attractions, it does not need to be seen as a defining or immutable feature. It is not addressed in the major international conventions, nor is it provided for in the domestic legislation of many jurisdictions. Indeed, it has been observed that “the position in New York (and indeed the US) is generally understood to be that there is no inherent duty of confidentiality unless the parties contract for it.”65
48. In Singapore and the UK, the obligation of confidentiality applies to all arbitration agreements unless the parties agree otherwise.66 But its precise contours and outer limits is governed by the common law.67 Although there does not appear to be any case law from the major jurisdictions that deals squarely with this issue, the decision of the Singapore High Court in AAY v AAZ provides some useful guidance.68 There, a party to the arbitration disclosed the partial award and other documents to the Commercial Affairs Department of the Singapore Police Force, alleging fraud and conspiracy. The High Court held that “disclosure to the appropriate authorities where there is reasonable suspicion of criminal conduct is … an exception to the obligation of confidentiality which can be broadly categorised as falling within the public interest, though this is not to say that there exists (or should exist) a general public interest exception.69
Significantly, the court considered that “confidentiality is a lesser interest than the public interest of having criminal wrongdoing revealed to the relevant authorities for their investigation.”70
49. Although AAY v AAZ dealt with disclosure by a party rather than by a tribunal, I suggest that this is not a material difference. The focus of the analysis should be on the public interest served by the disclosure and the function of the public body to which the information is disclosed, rather than by the identity of the disclosing party. If anything, tribunals may be in a better position than the parties to make such disclosures, since they are independent and impartial, and they have a professional obligation to supervise and uphold the integrity of the arbitral process.
50. But we must recognise that addressing this issue effectively requires a multi-stakeholder approach involving tribunals, courts, legislatures, and arbitral institutions.
(a) First, both courts and legislatures should provide the necessary supporting framework to encourage appropriate disclosure. This might involve making clear that the reporting of suspected corruption constitutes a recognised exception to the tribunal’s confidentiality obligations, and introducing statutory protections that immunise tribunals from potential claims or complaints arising from good faith disclosures. The Singapore model that I have discussed might provide a useful template.
(b) Second, arbitral institutions should consider whether such exceptions can be spelled out in their institutional rules. This would provide greater clarity and certainty for all participants in the arbitral process, whilst ensuring that the public interest in combating corruption is not compromised by overly rigid interpretations of the confidentiality obligations.
51. Ultimately, the goal must be to create a framework that promotes the autonomy of parties to have their disputes heard in private, while ensuring that the arbitral system does not become a haven for those seeking to shield corrupt conduct from appropriate scrutiny. In achieving this balance, we serve not only the public interest in combating corruption, but also that of safeguarding the long-term legitimacy and sustainability of international arbitration.
IV. The Present: Addressing Corruption during Curial Review
52. I turn to the role of supervisory courts in addressing corruption at the post-award stage. This presents us with competing tensions: the vital need to uphold the finality of the arbitration process and the principle of minimal curial intervention on the one hand; and the duty of the courts to safeguard matters which are fundamental to the public policy of the state on the other.
53. Let me outline the various situations that might arise at the post-award stage.
54. The first concerns cases where corruption infects the arbitral process itself. As I mentioned at the outset, it is uncontroversial that the courts have both the jurisdiction and the duty to intervene in such cases.71 Nigeria v P&ID is perhaps the best-known recent example of this category of cases, in that at least part of the complaint pertained to corruption in the course of the arbitration itself.
55. The second and more complex situation arises where corruption infects the underlying contract or the arbitration agreement. Within this category, a further distinction emerges between cases where (i) the issue has been considered by the tribunal; and (ii) those where the issue has not been considered.
(a) Where the tribunal has not considered the issue of corruption, the courts can nonetheless consider the matter on the basis that the award may conflict with the public policy of the state. As I have already covered, concerns of abuse of process or waiver can be trumped by the response that the international public policy of the state is impugned, and courts are empowered under the Model Law and the New York Convention to review matters of international public policy on their own motion.
(b) But where the tribunal has considered the issue of corruption, and the court is then asked to review that finding, there is a profound tension between the competing imperatives that I have outlined. And it is in this last situation that we find considerable divergences in judicial approaches.
A. Three possible approaches
56. I have broadly categorised the approaches into three categories: minimal review, maximal review, and contextual review. Each of them represents a different calibration of the competing interests.
i. Minimal review
57. The minimal review approach prevails in most major common law jurisdictions including England and Wales, Hong Kong, and Singapore. Under this approach, the findings of the tribunal are upheld as a starting point, with the courts intervening only in exceptional circumstances. There are at least four situations which have been recognised in the case law as being sufficiently exceptional:
(a) First, where there is “palpable and indisputable illegality” on the face of the award.72
(b) Second, where there is new and cogent evidence that has surfaced, which could not reasonably have been produced before the tribunal.73
(c) Third, where the impugned error relates to an “error of law” concerning what the public policy of the state is, as opposed to an “error of fact”.74
(d) And finally, where the tribunal’s decision-making process was tainted with “fraud, a breach of natural justice, or any other vitiating factor”.75 This last category is perhaps better conceptualised as a generic challenge against the award on orthodox grounds rather than specifically resting on public policy.
ii. Maximal review
58. At the opposite end of the spectrum lies the maximal review approach, which contemplates a fresh or de novo review of findings on matters of public policy. Under this approach, the courts are neither limited to the evidence submitted to the tribunal nor bound in any way by their findings or the tribunal’s assessment of the evidence.
59. This represents the current approach of the French courts, as exemplified in the recent decision in Belokon v Kyrgyzstan, where the Court of Cassation set aside an award because it disagreed with the tribunal's finding that allegations of money laundering were not made out. The Court held that its inquiry into corruption “was neither limited to the evidence produced before the arbitral tribunal nor bound by [its] findings, assessments and qualifications”.76
iii. Contextual review
60. The third approach is that of contextual review, which is intended to represent a middle ground between the two approaches that I have discussed. While this does not represent the law in any of the major jurisdictions, it was first formulated by Lord Justice Waller in Soleimany and later developed in his dissenting judgment in Westacre (CA).77
61. The contextual review approach proceeds in three stages:
(a) First, the court must be satisfied that there is prima facie evidence of illegality.
(b) Second, the court will then conduct a preliminary inquiry and determine whether to give full faith and credit to the award, considering factors such as the strength of the contrary evidence to suggest that there was no illegality, the competence of the tribunal, and evidence of collusion or bad faith in the procurement of the award.
(c) And finally, if the court is satisfied that the award is potentially unsafe, it will then undertake a more elaborate inquiry into the issue of illegality.
B. Striking the appropriate balance
62. What then ought to be the approach that appropriately balances the competing tensions in this area? With respect, I consider that there are shortcomings in each of the three approaches that I have outlined.
(a) A maximal approach involving full de novo review seems too broad. It may not accord sufficient weight to the principles of finality and minimal curial intervention.78 The case for a maximal approach would also seem to be significantly reduced if tribunals were to take a more proactive approach to issues of corruption, as I have suggested.
(b) On the other hand, a minimal approach may set the bar too low. It could even encourage unscrupulous parties to use the arbitral and judicial process to mask and whitewash corrupt schemes.79
(c) If a middle ground is to be preferred, it may seem logical to consider the contextual review approach.80 But as others have observed, this approach appears to be too subjective, uncertain and unworkable in practice. It is not entirely clear how one should delineate the different stages of the inquiry, and there is a real possibility that the court embarks on a full-scale review at the outset.81
63. An alternative approach might be for the courts to engage in a limited rather than de novo review of a tribunal’s findings on corruption, but only if it is satisfied that the issue implicates the public policy of the forum. This has been formulated by Professor Darius Chan and Mr Elias Khong as a two-stage approach:
(a) At the first stage, the court does not look at the evidence but it considers whether the allegations or the suspicion, if proven, would engage the public policy of the forum. This avoids any evaluation of the strength of the evidence at the preliminary stage, unlike the contextual review approach. Instead, it performs a sieving function based on (i) the severity of the alleged illegality; and (ii) whether the public policy of the reviewing forum is impugned by it.82
(b) If the court finds that the public policy of its jurisdiction is implicated, it will then proceed to undertake a limited review of the tribunal’s findings. Such a review would differ from a de novo hearing of the issue in at least two important ways. First, it should be based on the evidence available on the record, and the court should not admit new evidence unless it was not reasonably available at the time of the arbitration.83 Second, the court should only review the award to the extent that it is necessary to decide the specific allegations implicating public policy, without allowing the parties to re-open the entire award.84
64. It will be evident that this is a complex area of the law that does not admit of easy answers, and where a diverse range of viewpoints have been advanced. It will also be evident that this may be ripe for consideration by the courts and I should therefore refrain from saying much more on this. But it leads me to the third and final part of my lecture.
V. The Future: The Way Ahead
65. This evening, I have outlined several areas where some uncertainty, as well as considerable divergences exist both in philosophy and approach, whether on the part of tribunals or supervisory courts.
66. This reflects a more fundamental challenge that I would like us to think about, which extends beyond the subject of corruption in arbitration, and that is the importance of striving for greater clarity, coherence and consistency in matters of transnational commercial law generally. The need for us to think in terms of a transnational system of commercial justice is an issue that I have addressed on previous occasions,85 but it bears renewed emphasis in the context of our discussion today.
67. In this regard, it ought to be obvious why convergence to the extent possible is not just desirable but even becoming necessary. I advance four reasons:
(a) First, legal differences inevitably increase transaction costs, undermining the predictability and efficiency that commercial parties need and seek in matters of commerce.
(b) Second, they may also incentivise forum shopping. For instance, parties engaged in corrupt activity may be tempted to structure their arbitrations or enforcement strategies around jurisdictions that are perceived to be less robust in addressing corruption.
(c) Third, we should strive for coordinated responses that represent the most effective solutions to address global challenges such as corruption. Coordinated responses instil trust and confidence in both the integrity of arbitration and more importantly the rule of law.
(d) And fourth, legal differences place arbitrators in an invidious position of not knowing which approach to take – particularly when the seat court’s approach might deviate from those of possible enforcement jurisdictions.
68. Apart from the need to promote convergence, we should also appreciate the vital role that supervisory courts have in protecting and enhancing the legitimacy of arbitration, both by establishing and reinforcing rule of law norms, as well as by setting and upholding baseline standards. It has taken an enormous effort to move beyond viewing the relationship between courts and arbitration as one of mere oversight or grudging accommodation. It is time for us all to embrace a more collaborative partnership that recognises the essential role that supervisory courts play in helping the arbitration ecosystem to develop and flourish.
69. Pulling these threads together, supervisory courts should strive towards greater clarity, consistency and coherence, both in how corruption is addressed in arbitration and in matters of transnational commercial law generally. We might think about this from a couple of angles.
70. The first lies in enhancing international judicial dialogue, especially between key commercial courts that serve as important supervisory jurisdictions. This has historically occurred through the publication of written judgments and the cross-citation of authorities, which enables the gradual development of shared principles and approaches across jurisdictions.
71. More recently, we have seen a significant increase in direct communications and collaborations between courts, through a wide variety of fora. The Singapore Judiciary, for instance, co-hosts the Judicial Seminar on Commercial Litigation with the Hong Kong Judiciary and the Supreme Court of New South Wales. Both our jurisdictions also participate in fora such as the Standing International Forum of Commercial Courts and the Asia Pacific Judicial Colloquium. These direct exchanges are greatly valued because they enable judges to share experiences and discuss emerging challenges. They also help to some extent in advancing convergence on the common legal issues that we all face by promoting our understanding of the divergences.
72. A second pathway of more recent vintage involves international courts. I will keep my brief remarks on the SICC, and the Bahrain International Commercial Court (or “BICC”) which was launched just last month. The very structure and makeup of these international courts serve to promote convergence and consistency. They facilitate the cross-pollination of legal ideas not only through the diversity and strength of their international benches, which hail from a range of common and civil law jurisdictions, but also through their more open approach to foreign legal representation. These ideas are then evaluated in published written judgments that contribute to the body of transnational commercial law, and which may be cited before other courts.
73. A notable feature of the BICC is that appeals from the BICC may, in defined circumstances, be heard by the newly constituted International Committee of the Singapore International Commercial Court (or “ICSICC”). The ICSICC is jurisdictionally neutral and may in time hear appeals from other prescribed jurisdictions. Its bench will comprise Judges from the Supreme Court of Singapore, International Judges of the SICC, and ad hoc judges from the jurisdiction that refers the appeal. We hope that in time, the ICSICC will serve not only as a robust mechanism for error correction, but will also promote clear, consistent and coherent jurisprudence on important issues of commercial law, potentially including those that we have discussed today. While this might represent the present high-watermark in terms of the efforts of commercial courts to develop a more coherent transnational system of commercial justice to support transnational commercial transactions, I suggest we are witnessing the growing influence of these courts of special design and purpose, and that they come to offer an alternative to international arbitration while also supporting, strengthening and supervising this vital mode of dispute resolution in the coming decades.
VI. Conclusion
74. Ladies and gentlemen, allow me to conclude. I have suggested today that we should adopt a more proactive and robust approach to dealing with issues of corruption in international arbitration. I have sought to advance four key propositions:
(a) First, arbitral tribunals must recognise their authority and responsibility to investigate corruption when there are sufficiently manifest red flags, even if the parties choose not to raise the issue.
(b) Second, tribunals should be empowered and encouraged to report suspected corruption to the relevant authorities, with the appropriate protections to shield them from potential liability.
(c) Third, supervisory courts should adopt a standard of review of awards that is neither so deferential as to encourage the laundering of corrupt schemes through arbitration, nor so intrusive as to undermine arbitration’s finality and efficacy.
(d) And finally, at a broader level, we must all embrace the need to develop coordinated and convergent responses across jurisdictions.
75. Ultimately, the challenge of corruption is one that must be adequately addressed if we are to maintain trust and confidence in the institution of arbitration, and indeed in the entire system of transnational commercial justice. If we fail to act decisively, we risk not only individual awards being tainted, but also the erosion of the integrity and legitimacy of international arbitration.
76. Thank you all very much for your attention this evening. It has been a great privilege and a real pleasure to address you.
* I am deeply grateful to my law clerks, Elias Khong and Timothy Lee, and my colleagues, Assistant Registrars Ong Kye Jing and Bryan Ching, for all their assistance in the research for and preparation of this address.
(1) The Federal Republic of Nigeria v Process & Industrial Developments Limited [2023] EWHC 2638 (Comm) (“Nigeria v P&ID”). See, eg, Dame Elizabeth Gloster DBE, “Red Flags or White Flags? A Practical Guide to Dealing with Fraud in Arbitration”, 29th Goff Lecture (26 March 2025); Prof Julian Lew KC, “The Effect of Corruption on the Decisions of International Arbitration Tribunals: From the Landmark Judge Lagergren’s 1963 Award in ICC Case No. 1110 to Current Times”, Berthold Goldman Lecture (2 July 2024).
(2) Yves Fortier KC, “Arbitrators, Corruption and the Poetic Experience”, Kaplan Lecture 2014 (20 November 2014) at pp 18–19.
(3) ICC Commission on Arbitration and ADR, “Red Flags or Other Indicators of Corruption in International Arbitration” (2024) 2 ICC Dispute Resolution Bulletin (“Red Flags Document”) at p 35.
(4) Gary Born, “Bribery and an Arbitrator's Task” (Kluwer Arbitration Blog, 11 October 2011).
(5) McGill University, “Private Justice and the Rule of Law”, available at www.mcgill.ca/pjrl/research.
(6) Gary Born, International Commercial Arbitration, 3rd edn (Kluwer Law International, updated August 2022) at §6.04[A], [D] and [F].(7) See, eg, American Safety Equipment Corp v J P Maguie & Co 391 F 2d 821 (2nd Cir, 1968) at 826–827.
(8) See n 4 above.
(9) Justice Louis D. Brandeis, Other People’s Money and How the Bankers Use It (Frederick A. Stokes Company, 1914) at p 92.
(10) See Michael Hwang SC and Kevin Lim, “Corruption in Arbitration - Law and Reality” (2012) 8 Asian International Arbitration Journal 1 (“Hwang & Lim”) at para 92; see also Margaret Moses, “Corruption’s Challenge to Arbitral Legitimacy” (2025) 25 Pepperdine Dispute Resolution Law Journal 195 at 207. (11) Affirmed by the EWCA on appeal in Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd and Others [2000] 1 QB 288 (“Westacre (CA)”).
(12) Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd and Others [1999] QB 740 at 767D.
(13) ibid at 773C. Cf. Waller LJ’s dissenting opinion on appeal in Westacre (CA) at 315A.
(14) ibid at 767F–G.
(15) Development Bank of Philippines v Chemtex Fibres, Inc 617 F Supp 55 (SDNY 1985) at 57, citing the US Supreme Court’s decision in Mitsubishi Motors Corp v Soler Chrysler-Plymouth 473 US 614 (1985).
(16) Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] 1 SLR 249 at [47].
(17) See Singapore International Dispute Resolution Academy, “SIDRA International Dispute Resolution Survey: 2020 Final Report” (2020) at p viii; Queen Mary University of London & White & Case LLP, “2021 International Arbitration Survey: Adapting Arbitration to a Changing World” (2021) at p 5.
(18) See, eg, Federal Arbitration Act 9 USC (US) § 7.
(19) See, eg, Art 27 of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”).
(20) Domitille Baizeau and Tessa Hayes, “The Arbitral Tribunal’s Duty and Power to Address Corruption Sua Sponte” in Andrea Menaker (ed), International Arbitration and the Rule of Law: Contribution and Conformity (Kluwer Law International, 2017) (“Baizeau & Hayes”) at p 233.
(21) Nigel Blackaby, Constantine Partasides and Alan Redfern, Redfern and Hunter on International Arbitration, 7th edn (Oxford University Press, 2002) at [2.158]; see also United Kingdom, House of Lords, Parliamentary Debates (11 September 2024) vol 839 at cols 1577–1578 (Lord Hoffmann) (“Arbitration is a consensual arrangement. The parties have agreed that each of them will come before a tribunal, that each will present his case and that the tribunal will decide on the basis of the arguments the parties present. Is it consistent with that form of decision-making that the tribunal should attempt to dig away at a point on which the parties have not relied? Of course, if one of the parties suspects that there has been bribery and corruption on the other side, so to speak, that would enable it to resist the application, it would no doubt do so. But, in a case in which neither party raises this point, it is difficult to see what the arbitrators can do.”)
(22) PT Prima International Development v Kempinski Hotels SA and other appeals [2012] 4 SLR 98 at [72]; Re Landau, Toby Thomas QC [2016] SGHC 258 at [66]; Hwang & Lim at paras 15 to 26.
(23) Art 42 ICC Rules 2021; Art 32.2 LCIA Rules 2020; Art 13 HKIAC Rules 2024; Art 3.5(c) SIAC Rules 2025.
(24) Gary Born, International Commercial Arbitration, 3rd edn (Kluwer Law International, updated December 2023) at §25.04[H][4] (“the correct reading of Article 34(2) and other national arbitration legislation is that these provisions permit a national court to raise issues of public policy sua sponte or ex officio in annulment proceedings, rather than requiring an award-debtor affirmatively to raise the issue (as is the case under Article 34(2)(a))”);
Art 34(2)(b)(ii) Model Law: “(2) An arbitral award may be set aside by the court specified in article 6 only if:
(a) the party making the application furnishes proof that:
… or
(b) the court finds that:
…
(ii) the award is in conflict with the public policy of this State.”
[emphasis added]
(25) Gary Born, International Commercial Arbitration, 3rd edn (Kluwer Law International, updated March 2024) at §26.05[C][9][c] (“Article V(2) permits a national court to raise issues of public policy sua sponte or ex officio in recognition actions, rather than, as under Article V(1), requiring an award-debtor affirmatively to raise the issue”);
Art V, NYC:
“1. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
…
2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
…
(b) The recognition or enforcement of the award would be contrary to the public policy of that country.”
[emphasis added]
(26) Darius Chan and Elias Khong, “Re-calibration of Curial Intervention in Public Policy Challenges Against Arbitral Awards” (2024) 41 Journal of International Arbitration 271 (“Chan & Khong”) at para 21.
(27) World Duty Free Company Limited v Republic of Kenya (ICSID Case No. ARB/00/7) at para 188.
(28) Kenya Airports Authority v World Duty Free Company Limited t/a Kenya Duty Free Complex (High Court of Kenya, Nairobi, misc. application no. 67 of 2013) at paras 35, 38 and 39.
(29) See, eg, Chief Justice Sundaresh Menon, “Arbitration and the Transnational System of Commercial Justice: Charting the Path Forward”, Speech at 25th Annual International Bar Association Arbitration Day (23 February 2024) at para 2.
(30) Vladimir Khvalei, “Using Red Flags to Prevent Arbitration from Becoming a Safe Harbour for Contracts that Disguise Corruption”, ICC International Court of Arbitration Bulletin Extract, Vol 24/Special Supplemental (2013) at p 19.
(31) Lao Holdings NV v Government of the Lao People’s Democratic Republic and another matter [2021] 5 SLR 228; upheld on appeal in Lao Holdings NV and another v Government of the Lao People’s Democratic Republic [2022] SGCA(I) 9.
(32) Lao Holdings NV v Government of the Lao People’s Democratic Republic and another matter [2021] 5 SLR 228 at [153].
(33) See Sim Tony v Lim Ah Ghee (trading as Phil Real Estate & Building Services) [1994] 2 SLR(R) 910 at [60].
(34) Lao Holdings NV v Government of the Lao People’s Democratic Republic and another matter [2021] 5 SLR 228 at [153].
(35) See China Machine New Energy Corp v Jaguar Energy Guatemala LLC and another [2018] SGHC 101 at [226].
(36) Aleksander Godhe, “Tribunal Duties and the Exclusion of Evidence in International Arbitration: The Tug-of-War of Fairness and Efficiency” (2025) 41 Arbitration International 103.
(37) Red Flags Document at p 59 (section 3.1.1).
(38) Red Flags Document at p 45 (section 1.5).
(39) See, eg, r 50.2 SIAC Rules 2025.
(40) See, eg, Art 27 Model Law.
(41) Section 13(2) International Arbitration Act 1994.
(42) See, eg, Art 9(6)–(7) IBA Rules on the Taking of Evidence in International Arbitration 2020.
(43) See Carolyn B Lamm, Hansel T Pham and Rahim Moloo, “Fraud and Corruption in International Arbitration” in Miguel Ángel Fernández-Ballesteros and David Arias Lozano (eds), Liber Amicorum Bernardo Cremades (La Ley, 2010) at p 706.
(44) Baizeau & Hayes at p 258.
(45) ibid at p 262.
(46) ICSID Case No. ARB/10/3, Award (4 October 2013).
(47) ibid at paras 239–241 and 246.
(48) ibid at paras 265 and 389.
(49) Vietnam Oil and Gas Group v Joint Stock Company (PowerMachines – ZTL, LMZ, Electrosila Energomachexport) [2025] SGCA 50 at [88].
(50) Lao Holdings NV v Government of the Lao People’s Democratic Republic and another matter [2021] 5 SLR 228 at [153].
(51) Nigeria v P&ID at [1]–[10].
(52) ibid at [493]–[497].
(53) ibid at [588].
(54) ibid at [152] and [554].
(55) ibid at [152].
(56) ibid at [314].
(57) ibid at [551].(58) ibid at [554].(59) Koh Swee Yen, “Duty or Right of Arbitrators to Report Suspicion of Corruption to Authorities?” (KluwerArbitration, January 2021).
(60) Eg, ss 161–164 (offences concerning the taking of gratification that involves a public servant).
(61) The definition of “criminal conduct” in the CDSA includes “any act constituting a serious offence” (see s 2 of the CDSA). In turn, the Second Schedule of the CDSA sets out a list of “serious offences”, which includes corruption under ss 5 and 6 of the Prevention of Corruption Act (see S/N 168 and 169 of the Second Schedule).
(62) See s 45(5)(c) of the CDSA.
(63) Koh Swee Yen, “Duty or Right of Arbitrators to Report Suspicion of Corruption to Authorities?” (Kluwer Arbitration, January 2021); see also Transnational Dispute Management, “Summary of the OGEMID Symposium ‘Corruption in/on International Arbitration’ (January/February 2024)” at p 17.
(64) Where there is more than one state that appears to have jurisdiction to prosecute the possible illegality, it is suggested that the tribunal can proceed to make the report to all the relevant authorities. It would arguably be premature and overly burdensome for the tribunal to make a detailed assessment of the jurisdiction that is most likely or best suited to prosecute the possible illegality, at the investigative stage.
(65) Nicholas Lingard and Smitha Menon, “Confidentiality in International Arbitration: A Comparative Jurisdictional and Institutional Review” (2020) 1 Singapore Arbitration Journal 1 at para 25.
(66) Republic of India v Vedanta Resources plc [2020] SGHC 208 at [111].
(67) Republic of India v Vedanta Resources plc [2021] 2 SLR 354 at [29].
(68) AAY v AAZ [2011] 1 SLR 1093.
(69) ibid at [72].
(70) ibid at [72].
(71) Chan & Khong at paras 32–33.
(72) BNX v BOE and another matter [2017] SGHC 289 at [94]; CXG and another v CXI and others [2023] SGHC 244 at [116].(73) Westacre Investments Inc v. Jugoimport-SPDR Holding Co Ltd [1999] 3 All ER 864.
(74) AJU v AJT [2011] 4 SLR 739 at [67].
(75) Betamax Ltd v State Trading Corporation [2021] UKPC 14.
(76) Maria Mironova, “The Approach of the French Courts to Violations of International Public Policy” (Clyde & Co, 15 November 2022); Belokon v Kyrgyzstan, Appeal No 17–17.981, French Cour de Cassation’s Judgment of 22 March 2022; Alexander Brothers Ltd v Alstom Transport and Alstom Network UK Ltd, Appeal No. 558 F-D French Cour de Cassation’s Judgment of 29 September 2022.
(77) Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd and others [1999] 3 All ER 864 at 885H.
(78) COT v COU and others and other appeals [2023] SGCA 31 at [1].
(79) Hwang & Lim at para 179.
(80) ibid at para 180.
(81) Chan & Khong at para 51.
(82) ibid at para 79.
(83) ibid at paras 81–82.
(84) ibid at para 83.
(85) Sundaresh Menon CJ, “The Law of Commerce in the 21st Century: Transnational Commercial Justice Amidst the Wax and Wane of Globalisation”, lecture hosted by the University of Western Australia Law School and the Supreme Court of Western Australia (22 July 2022).
2025/12/12
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