Auteur

M. Tarek El Ghadban

Ph.D candidate - Université de Paris 1 Panthéon-Sorbonne

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Unclean hands

I. Definition

1.

The unclean hands doctrine provides that a court will not lend its aid if a claimant's cause of action is based on an unlawful act.1 It derives from the English courts of equity2 and then developed in the Anglo-American legal tradition.3 As at today, it is found in most, if not all, legal traditions.4

2.

There is not a generally accepted definition of this doctrine in international law and its status as a principle of international law.5 This is due to different types of circumstances in which this doctrine has been used in practice, the varying nomenclature given to the underlying concept, the lack of consensus regarding the source of the obligation and the different consequences of having “unclean hands”.

3.

The term “clean hands” is also commonly used.6 Tribunals and courts have noted that this doctrine is rooted in “good faith”,7 but have also referred to the unclean hands doctrine by using a Latin maxim.8 In international investment arbitration, tribunals may refer to this doctrine when dealing with the “legality requirement”,9 or consider corruption as one of its facets.10 

4.

Certain decisions attempt to distinguish between the notions referred to by different terms.11

II. Unclean hands in practice

5.

Different tribunals have considered different factors to identify the existence of “unclean hands”.

6.

Some arbitral and international tribunals require “reciprocal and ongoing violations”,12 provided this does not contradict the purpose of the substantive obligation subject to the dispute.13

7.

Other arbitral and international tribunals consider that parties whose claims are founded on their own unlawful activity had “unclean hands”, holding that “an unlawful act cannot be the basis of an action at law”.14

8.

Alternatively, claimants may be considered to have “unclean hands” when they provoked the breach for which they are seeking reparations,15 irrespective of the illegal nature of claimant’s original actions.16

9.

However, a causal link between the two actions is not always required. Any unlawful conduct related to the subject matter of the dispute could make the claimant’s hands unclean per se, or as a component of Equity.17 Tribunals have required varying degrees of proximity to the dispute in question,18 and gravity.19

10.

Other decision avoids naming the principle, referring to “equity”,20 “proper administration of justice” or International public policy.21

III. Source of the obligation

11.

The source of the obligation can be traced to general principles of law or public policy, either international or transnational.22 However, other tribunals take an opposite view.23

12.

Some tribunals consider the principle part of the applicable law24 or treaty.25

13.

However, due to the controversy surrounding the doctrine’s nature, some courts and tribunals prefer avoiding the question altogether, basing their reasoning on the special provisions of the applicable law.26

IV. Consequences of "unclean hands"

14.

Having “unclean hands” can influence an adjudicative body's jurisdiction,27 a claim’s admissibility,28 or a substantive solution of the dispute.29

15.

As to jurisdictions, tribunals have found that a claimant’s unclean hands can deprive them of their competence to rule on a legal dispute.30

16.

As to admissibility, tribunals have considered that, although competent, claimant’s actions barred it from requesting a legal remedy.31

17.

Finally, other tribunals have considered that claimant’s actions do not bar its legal action, nor deprive the tribunal of their competence to rule, but affected the substantive solution.32

Bibliography

Born, G., International Commercial Arbitration, Vol. I, 2009, p. 411-516.

Brekoulakis, S., Law Applicable to Arbitrability: Revisiting the Revisited Lex Fori, Kluwer, 2009, p. 99-119.

Cheng, B., General Principles of Law as Applied by International Courts and Tribunals, 2006, p. 155-158.

Crawford, J., Brownlie’s Principles of Public International Law, 8th ed., 2012, p. 701.

Dumberry, P., State of Confusion: The Doctrine of ‘Clean Hands’ in Investment Arbitration After the Yukos Award, The Journal of World Investment & Trade, Vol. 17, 2016, p. 229-259.

Fadlallah, I., L’ordre public dans les sentences arbitrales, Collected Courses of the Hague Academy of International Law, Vol. 249, 1994.

Fitzmaurice, G., The General Principles of International Law Considered from the Standpoint of the Rule of Law, Collected Courses of the Hague Academy of International Law, Vol. 92, 1958, p. 119-165.

Fouchard, P., Gaillard, E. and Goldman, B., Traité de l’arbitrage commercial international, 1996, p. 367-369 and p. 825-840.

Halsbury's Laws of England, Vol. 47, 2014, Principles of Equitable Jurisdiction, Section 8, para. 112.

Kosheri, A.S. and Leboulanger, P., L’arbitre face à la corruption et aux traffics d’influence, Revue de l’arbitrage, 1984, p. 3.

Lagerwall, A., Le principe ex injuria jus non oritur en droit international, 2016.

Pomson, O., The Clean Hands Doctrine in the Yukos Awards: A Response to Patrick Dumberry, The Journal of World Investment & Trade, Vol. 18, 2017, p. 712-734.

Seraglini, C., Lois de police et justice arbitrale internationale, 2001.

Seraglini, C. and Ortscheidt, J., Droit de l’arbitrage interne et international, 2013, p. 535-573.

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