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State of Confusion: The Doctrine of ‘Clean Hands’ in Investment Arbitration After the Yukos Award

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This article examines the controversial question of the clean hands doctrine in investment arbitration and how tribunals have analyzed this concept. Many tribunals have concluded that they lacked jurisdiction over a claim (or that it was inadmissible) because an investor had made its investment in violation of the host State’s laws. This article argues that this legality requirement is a manifestation of the clean hands doctrine. The main focus of the article is a critical review of the recent Yukos award. It assesses the Tribunal’s conclusion that the doctrine should not be considered as a general principle of law and its rejection of the application of the doctrine to violations committed by an investor during the post-establishment phase of its investment. The article argues that a number of investment tribunals have in fact already applied the clean hands doctrine in their awards to bar the admissibility of claims.

Affiliations: 1: University of Ottawa, Canada, Patrick.dumberry@uottawa.ca

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/content/journals/10.1163/22119000-01702002
2016-05-04
2017-12-15

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