Arbitration and Criminal Law: Reflections on the Duties of the Arbitrator

摘要

Arbitration and criminal law appear to live on two distant planets, and their paths do not seem ever to have to cross each other. Arbitration is based upon private autonomy, and its purpose is to adjudicate private disputes. Criminal law endeavours to restrict private autonomy for the sake of the general interest. Criminal law is at the core of the state's mandatory laws, while arbitration is autonomous from states. Yet, because criminal law rules might have an impact on both the arbitral proceedings and the solution of the dispute, these two disciplines have more points of connection than could be suspected from the outset. The aim of this article is to address this odd relationship from the point of view of the arbitrator's duties. The international business legal environment is nowadays characterised by a double trend. On one side, globalisation and the creation of a true world marketplace have sidelined national states and undermined their traditional role as the ultimate source of legality. In countries like France or Germany, ever since the time of Napoleon III and Bismarck, well before the Welfare State was invented, the state was perceived as having unlimited resources and unrestricted power. This is no longer true in today's economy. Transnational law has become a reality. Arbitration, the autonomy of which from national jurisdictions is more and more widely recognised, has emerged as the normal way to settle international business disputes. With the growing flow of state contracts, state arbitrations and investment arbitrations, states have become subject to international liability, just like private parties.