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
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”.
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 See further Legality of investment and Corruption.
II. Unclean hands in practice
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 See also Investor's conduct.
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
III. Source of the obligation
IV. Consequences of "unclean hands"
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 See further Legality of investment.
Born, G., International Commercial Arbitration, Vol. I, 2009, p. 411-516.
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.
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.
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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