👤 KLEIMANN, Elie
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► Full Reference: Kleiman, E., The goals of compliance confronted to arbitration and its actors, in Frison-Roche, M.-A. (ed.), Compliance Jurisdictionalisation, series "Compliance & Regulation", Journal of Regulation & Compliance (JoRC) and Bruylant, to be published.
► Article Summary (done by the author): International arbitration, which remains the preferred method for the resolution of disputes arising from international commercial relations, has been overtaken by compliance, the manifestations of which are everywhere: arbitral institutions, arbitrators and courts exercising curial supervision of the international regularity of awards are regularly called upon to take into account rules of compliance.
Compliance has undeniably got a hold on the arbitration community. Being operators in an unregulated activity, arbitral institutions and arbitrators must generate trust; their ability to effectively self-regulate is a prerequisite for the success of arbitration and requires transparency and exemplarity. This self-imposed compliance is nowadays consubstantial to arbitration and is illustrated in such classic fields as prevention of conflicts of interest and control of arbitrators' availability, but also in the more recent domains of parity and diversity as well as reduction of the carbon footprint. Moreover, compliance has caught up with the ex post control of the international regularity of arbitral awards in matters involving allegations of corruption and money laundering. There is room for debate, particularly in France, because of the porosity of the boundaries between the methods that are specific to those mandatory rules of compliance that intend to prevent the most serious offences, and the methods that are specific to the establishment of the constituent elements of such crimes before criminal courts. This is an important issue, especially as the increasingly imperative nature of climate change and human rights regulations will extend the scope of these overlaps between compliance methods and the control of arbitral awards.
Arbitration is also taking over compliance. Arbitrators are called upon to rule on controversies arising from economic activities that are related to compliance: contracts relating to the implementation of preventive measures in the fields of anti-corruption, anti-money laundering and human rights as well as transactions relating to the reduction of the carbon footprint and climate change, etc. Moreover, compliance is also an arbitrable matter and arbitrators must apply or take into consideration the observance or disregard of rules of compliance when adjudicating commercial or investment disputes.