Bibliographie sélective OHADA

In recent years, investment arbitration tribunals are increasingly confronted with allegations of corruption, mostly invoked by host States as a defense to investors’ claims. After an affirmative finding of an alleged corrupt act between the investor and a public official of the host State in the establishment or conduct of the investment, tribunals have adopted a binary approach to the issue – if they uphold allegations of corruption, they completely dismiss the investor’s submissions. This binary approach has resulted in an asymmetry of liability for the two parties to a corrupt act (i.e., investors and host States/host State officials), failing to take into account the inherent bilateralism of corruption and the fact that domestic laws and international norms have outlawed both the act of offering and of accepting bribes. In particular, public officials’ free participation in a corrupt act to advance investments is attributable to the host State and requires State responsibility under international law. Moreover, the increasingly prevalent practice of inserting anti-corruption provisions in investment treaties has reinforced this lop-sided feature, as well as offering only weak effectiveness in terms of deterring corruption. After a careful examination of the treatment of corruption issues in investment arbitration and investment treaties, this thesis proposes a paradigm shift from the current asymmetric approach to a more balanced approach. It calls on investment tribunals to take a dual-track approach that investigates both corruption and investors’ claims, and ensures that each party assumes responsibility for its own misconduct. It also proposes that treaty drafters include anti-corruption provisions that impose strong obligations of anti-corruption on both sides of corruption (i.e., investors and host States) rather than merely on a single party to it

In recent years, investor-State tribunals have often permitted shareholders' claims for reflective loss despite the well-established principle of no reflective loss applied consistently in domestic regimes and in other fields of international law. Investment tribunals have justified their decisions by relying on definitions of "investment" in investment agreements that often include "shares", while the no-reflective-loss principle is generally justified on the basis of policy considerations pertaining to the preservation of the efficiency of the adjudicatory process and to the protection of other stakeholders, such as creditors. Although these policy considerations militating for the prohibition of shareholders' claims for reflective loss also apply in investor-State arbitration, they are curable in that context and must be balanced with policy considerations specific to the field of international investment law that weigh in favor of such claims: the protection of foreign investors in order to promote trade and investment liberalization.