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Republic of Croatia The ICSID Case Where Investor Corruption as a Defense Strategy of the Host State in International Investment Arbitration Might Succeed. In the landscape of international investment arbitration the allegations of corruption have become more and more common. Confronted with investors claims before an arbitral tribunal, host states employ all possible legal arguments available to avoid potential liability and the subsequent payment of compensation. Investors corrupt acts have emerged as a potentially viable state defense in international arbitration. Many cases brought corruption related issues to the forefront of international arbitration, but only World Duty Free v. Republic of Kenya and Metal Tech Ltd v. Republic of Uzbekistan resulted in the ICSID tribunals accepting the corruption defense invoked by the host states and the allegations of corruption as proven. No matter how outrageous the host states conduct toward the investors were in the above mentioned cases, the fact of the investors involvement in corruption to procure and win government contracts deprived the investors of the favorable award and appropriate protection of their rights, and the host states were able to evade any potential liability for investment violations and in fact profit from their violation of international investment law. Although no formal concept of precedent exists in international investment arbitration, future ICSID tribunals might consider World Duty Free and Metal Tech as concrete guidance in forming their conclusions and denying the recovery to corrupt investors. In MOL v. Republic of Croatia, the investor, MOL Hungarian Oil and Gas Plc MOL, initiated an ICSID arbitration against Croatia pursuant to the Energy Charter Treaty ECT claiming that the host state breached its obligations in connection with MOLs investments in Industrija Nafte dd INA. In 2. 00. 3 the Croatian government and parliament decided to privatize INA, Croatias most significant enterprise in the field of oil and gas, and MOL acquired a 2. Croatian government remained the major shareholder. As a part of the arrangement, MOL and the Croatian government entered into a Shareholders Agreement dated 1. July 2. 00. 3. Between 2. Croatian government continued the process of privatizing INA through reducing its own shareholding, which led in turn, in early 2. Shareholders Agreement, as the basis for MOL to increase its stake in INA to 4. The negotiations culminated in two agreements concluded on 3. January 2. 00. 9 the 2. Shareholders Agreements. As a result, MOL became INAs biggest shareholder with just under 5. INA and got management control of the company. The circumstances in which the negotiations and conclusion of the 2. Shareholders Agreements occurred lie at the heart of the ICSID arbitration. The Croatian government relies on corruption as a defense strategy, and argues that the 2. Shareholders Agreements were procured through bribery of Croatias then Prime Minister Ivo Sanader by MOLs CEO and Chairman Zsolt Herndi. The host state emphasizes the fact that in November 2. Mr. Sanader was convicted and sentenced to an eight year prison term before the Croatian court for taking the bribe in the amount of 5 million euros from the investor in exchange for facilitating the 2. Shareholders Agreements. However, in July 2. Croatias Constitutional Court annulled the corruption conviction against Mr. Sanader citing procedural errors, and ordered the retrial. Serial Communication Timeout. In September 2. 01. Croatian court started a retrial of former Prime Minister Sanader on a case of a bribe allegedly taken from MOL to allow it to acquire a dominant stake in INA. In addition, the Croatian authorities raised an indictment against Mr. Herndi for paying bribes in exchange for MOL getting a large stake in INA, but Mr. Herndi is evading prosecution. The host state alleges that corruption that underlies the 2. Shareholders Agreements forms a jurisdictional objection based on inter alia lack of consent, lack of investment and a violation of public policy. In the host states view, the investor never made a valid investment and it argues that the tribunal lacks jurisdiction to hear the case. On the other hand, the investor denies any wrongdoing, saying that neither MOL nor Mr. Herndi has been convicted of any crime in relation to the 2. Shareholders Agreements, and that the criminal charges against Mr. Herndi are being pursued in an effort by the host state to take control of INA. Further, the investor indicates that the factual determinations made in Croatian criminal proceedings are not dispositive for the ICSID tribunal. Adjudicating international investment disputes where it is alleged that the government contract has been obtained by bribery and where the facts and circumstances suggest that bribery has tainted the contract underlying the dispute frequently present difficult issues for arbitrators. Generally, it is very difficult to prove bribery as there is usually little or no physical evidence. In MOL v. Republic of Croatia the ICSID tribunal will need to determine how to approach this particular situation because the investor vigorously disputes the allegations of bribery while the facts and circumstances of this case suggest the 2. Shareholders Agreements may have been contaminated by bribery. The tribunal has to decide who has the burden of proof and whether such burden of proof might be discharged in an easier way by evidence of sufficient red flags established by the international community as indicators of corruption. The tribunal may be ready to use presumptions rather than full fledged and hard to obtain evidence. In any case, bribery must be sufficiently proven to convince the tribunal that it lacks jurisdiction over the MOL claim. So far, ICSID tribunals have not dismissed any ECT claim due to the allegations of investors bribery, although the tribunal in Plama Consortium Limited v. Bulgaria held that there was an implied requirement of clean hands in order to bring a claim under the ECT. However, the Plama tribunal did not refer to the clean hands doctrine in explicit terms. The tribunal relied on the general principle incorporated in international law that tribunals will not assist investors who have engaged in illegal activities. Thus, in MOL v. Republic of Croatia the tribunal will certainly discuss whether MOL can recover under the ECT because of the alleged illegality of its investment. By invoking the corruption defense, the Croatian government hopes that the ICSID tribunal will dismiss the investors claim, and impose no financial liability on Croatia. Thus, the tribunal has to address the issue whether the investor is entitled to the substantive protection offered by the ECT and the evidence of bribery generated from the criminal investigation in Croatia might be crucial for the tribunal when it will decide the outcome of this arbitration. The tribunal may hold that the protection under the ECT does not cover investments that are contrary to domestic or international law, notwithstanding that the ECT does not expressly provide that investments must be made in conformity with particular law. Install SIGERSHADERS V Ray Material Presets Pro 2. For 3ds Max 6. 4 bit.