Expertise on Economic Crimes, Corruption and Bribery
Prof Kryvoi regularly advises and acts as expert on issues of economic crimes, particularly in transitional countries, Russia, Belarus and the CIS region.
He has also advised on issues of corruption in national legal systems used by politically and economically powerful actors to assert control over private businesses and its implications on criminal and civil proceedings.
Prof Kryvoi also has experience on dealing with cases in which the pretext of economic crimes is used to acquire control over businesses or as a tool of political oppression.
His experience includes:
- Regularly acting as country expert in court and arbitration proceedings
- AAdvising on the effect of conspiracy between authorities and businesses to take control over business assets in the Russian Federation while the original owner had to flee the country and seek political asylum in the United Kingdom
- Areparing an expert opinion on joint efforts of state officials and a religious organisation to extort money from a private business using criminal proceedings and dealing with an extradition request
- Founder of the CIS Arbitration Forum
- Member of the Executive Committee of the Russian and CIS Arbitration Network
- Initiating and running multiple projects related to the rule of law, good governance and education reform in Belarus
- Preparing a report with recommendations on the development law and policy related to foreign direct investments in international treaties and domestic law for a post-Soviet State
- Practicing law with a leading US law firm in St Petersburg, Russia and a Magic Circle law firm in London working primarily on commercial and investor-State disputes involving Russia, Ukraine and Kazakhstan.
His publications related to economic crimes and corruption include:
- ‘Economic Crimes in International Investment Law’, International and Comparative Law Quarterly, Volume 67, Issue 3, pp. 577-605 (2018)
|| + Abstract || Download ||.
The protection of foreign investment by treaties often clashes with the State's sovereign right to investigate economic crimes committed by investors. This article examines the different approaches taken by tribunals to questions concerning admissibility and jurisdiction, applicable law, the standard of review, the burden and standard of proof and deference to actions taken by domestic courts and regulators related to economic crimes.
It concludes that investors should not automatically be deprived of treaty protections and their access to investment arbitration blocked. The arbitration agreement, being autonomous from the main contract (or the relevant treaty), should, as a rule, remain valid even if the conduct of investors is tainted by economic crimes.
The article calls on investment tribunals to reflect in their awards on the contributory fault of the parties when representatives of States and investors are both complicit in economic crimes. To achieve greater legal certainty and procedural efficiency, a new generation of investment treaties and the practice of investment tribunals should draw on not only applicable domestic law but also existing sources of international law concerning economic crimes or national best practice.
- ‘Law and Practice of International Arbitration in the CIS Region (co-edited with Kaj Hobér) (Wolters Kluwer, 2017). || Buy ||.
- ‘Corporate Disputes in Arbitration Tribunals: To Be or Not To Be’, Zakon, Issue 4, pp.108-118 (co-authored with Sergey Strembelev, in Russian) (2013). || Download ||.
- ‘Bribery and Russia-Related Arbitration’, in ARBITRATION IN CIS COUNTRIES: CURRENT ISSUES, pp. 113-126 (Association for International Arbitration 2012). || + Abstract || Download ||.
This Article highlights the problem of bribery in resolving commercial disputes with Russian parties and shows how bribery can potentially affect arbitration proceedings.
Russia’s accession to the OECD Anti-bribery Convention prompted a number of legislative changes, which strengthened criminals and administrative liability for bribery offences. However, the civil law consequences of bribery remain the same – contracts concealing bribery are void as a matter of Russian law. There is no clear answer under Russian law as to validity of contracts procured by means of bribery.
Russian law as well as laws of other jurisdictions recognise the concept of separability of arbitration agreement. In other words, even if the underlying contract is void or terminated, the arbitration agreement in most cases remains in force and allows a tribunal to assert jurisdiction.
In theory, if bribery affected the contract, that could also lead to a refusal to enforce such award as contrary to public policy. But in practice, this is unlikely to happen because domestic courts are usually reluctant to reconsider the merits of arbitral awards in most jurisdictions.
- ‘Employee Ownership and Corporate Governance in Post-Privatization Russia’, UC Davis Business Law Journal, Volume 8, pp. 298-322 (2008); reprinted in Corporate Governance in Transition Economies, pp. 221-249 (McGee ed. 2008). || Download ||.
- ‘Discrimination and Security of Employment in a Post-Soviet Context’, The International Journal of Comparative Law and Industrial Relations, Volume 22, No.1, pp. 5-17 (2006). || Download ||.
- Bribery, Corruption, and Fraud in Investor-State Disputes: How Should Tribunals Approach Economic Crimes?, 10 August 2018, Kluwer Arbitration Blog || Read ||.
- Interview with ICSID Secretary-General Meg Kinnear: ICSID and the CIS Region, 31 May 2017, CIS Arbitration Forum || Read ||.
- More Parties include ICC Arbitration Clauses, the Number of CIS Disputes Rising. Interview with the Secretary General of the ICC International Court of Arbitration and Director of Dispute Resolution Services of the ICC, 22 December 2015, CIS Arbitration Forum || Read ||.
- Russia’s Mistral Deal under International Sanctions – will the Dispute be Arbitrable?, 23 October 2014, CIS Arbitration Forum || Read ||.
- Clash of Giants — the Yukos Arbitration Decision, 12 August 2014, LexisNexis || Read ||.
- Protecting Foreign Investors in Crimea: Is Investment Arbitration an Option? 29 July 2014, LexisNexis || Read ||.
Yarik Kryvoi © 2019