Multi-Tiered International Anti-Corruption Cooperation in Asia: A Review of Treaties and Prospects

Abstract

Effective international cooperation is essential for combating the pervasive and far-reaching problem of transnational corruption. This chapter focuses on the anti-corruption commitments and cooperation among Asian countries in the context of international investment. It firstly examines the legal framework against corruption in Asia at both the international and regional levels, encompassing both ‘hard law’ and ‘soft law’ instruments. In addition, the chapter presents a comprehensive analysis of the anti-corruption provisions in international investment agreements concluded by Asian countries. The review of these agreements reveals that provisions of direct anti-corruption obligations imposed on investors are still elusive among Asian investment agreements, whereas provisions that demonstrate states’ general commitments to combatting corruption are more common. The chapter highlights the importance of more nuanced treaty-making practices in addressing corruption, as well as the need to align commitments made under investment agreements with those of other international instruments aimed at tackling corruption.

An earlier version of this chapter was presented at the Universiti Brunei Darussalam Conference ‘Academic Perspectives on Corruption and Foreign Direct Investment in the Asia–Pacific Region’ on 29 May 2023. The authors express gratitude to the speakers and participants at the event for their feedback. A special thanks is due to Luke Nottage for his helpful comments and suggestions,  and to Flora Lee for her helpful editing support. Additionally, Yueming Yan extends her thanks to Yaping Tian for her excellent research and editing assistance and acknowledges the funding support from the Chinese University of Hong Kong Direct Grant for Research 2022/2023 (Project Code: 4059064).

1 Introduction

Addressing corruption is important in international investment as it erodes the economic and social fruits of investments. In the context of an increasingly intertwined global economy, the acknowledgement that it is inadequate to effectively regulate corruption on a purely national basis has encouraged states jointly to curtail corruption at the level of international investment law.¹

By joining international anti-corruption treaties, such as the 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of the Organization for Economic Cooperation and Development (OECD Anti-Bribery Convention), states have made commitments to prevent and eradicate corruption. Under the 2003 United Nations Convention Against Corruption (UNCAC), state parties have obligations to complete criminalisation of corrupt acts and implement quite detailed domestic measures. Additionally, international investment agreements (IIAs) are another important vehicle that can help solidify the growing consensus about the illegality of corruption in international investment. Some states have incorporated anti-corruption provisions (ACPs) in their newly signed IIAs, including free trade agreements (FTAs), bilateral investment treaties (BITs), economic partnership agreements (EPAs) and other treaty structures, to encourage more responsible and ‘clean’ international investments and fulfil their international obligations under the international anti-corruption conventions.²

The chapter shows how the existing international anti-corruption instruments and IIAs concluded among Asian countries³ address corruption issues. As the form and language of these emerging ACPs in the IIAs present diversity, the chapter empirically builds a typology of the observed ACPs, which can shed light on the approaches espoused by Asian countries to address corruption concerns through their IIAs. Also, it discusses whether this multi-tiered legal framework can effectively resolve corruption-related problems in international investment.

2 International Legal Framework Against Corruption in Asia

Asian countries have made anti-corruption commitments at various levels. This section focuses on the international legal framework against corruption and examines the commitments made by countries and regions in Asia, both in ‘hard law’ and ‘soft law’ instruments.

There is a lack of binding, regional-based conventions on anti-corruption in Asia. The UNCAC is the most significant international treaty that many Asian countries should comply with. This chapter emphasizes the importance of properly implementing the international obligations and commitments outlined in the UNCAC. Failure to do so may result in international litigation proceedings and responsibilities, as demonstrated by the recent Equatorial Guinea v. France case before the International Court of Justice (ICJ) as mentioned below,⁴ although states must separately consent to ICJ jurisdiction.

In addition, regional initiatives such as the Association of Southeast Asian Nations (ASEAN, discussed below) have established anti-corruption working groups, offices and other similar mechanisms, and have developed various guidelines and standards for preventing and deterring corruption.⁵ However, these instruments remain non-binding in nature. In this chapter we argue that Asian countries should take proactive measures to further enhance these non-binding commitments and ensure that their actions align with these commitments. Additionally, promoting the ‘hardening’ of these soft law commitments is necessary to strengthen anti-corruption efforts in the region.

2.1 International Conventions

The international community did not prioritise combating and deterring corruption, particularly transnational corruption, until the late twentieth and early twenty-first centuries. The earliest transnational efforts against corruption can be traced back to the adoption of a regional anti-corruption treaty initiated by member states of the Organization of American States (OAS), that is, the Inter-American Convention against Corruption. This convention was adopted on 29 March 1996 and entered into force one year later. Following this, several anti-corruption conventions, either on a regional basis or on a global basis, began to emerge (see Table 5.1).

Table 5.1 International and regional anti-corruption conventions

As shown in Table 5.1, the majority of current multilateral anti-corruption treaties have regional reach. The UNCAC, on the other hand, is the only global anti-corruption convention with legally binding effects that extend to almost every corner of the globe. The number of state signatories is currently at its peak of 189, which was reached on 18 November 2021 after being open to signatories since 2003. In Asia, a regional anti-corruption convention effective among Asian countries or jurisdictions is lacking, but almost all Asian countries have ratified the UNCAC (see Table 5.2). Consequently, the UNCAC is the most important ‘hard law’ regarding anti-corruption conventions that Asian countries are obliged to abide by.

Table 5.2 Ratification status of the UNCAC in Asia

2.1.1 Preventive Measures and Criminalisation

Ratifying or accessing the UNCAC has been a crucial aspect of international cooperation. By becoming a party to the UNCAC, states are required to implement numerous preventive measures against corruption that target both public sectors and private entities. These measures include developing anti-corruption policies (Article 5), establishing anti-corruption agencies (Article 6), promoting transparency and integrity of public sectors (Articles 7–8), and enhancing accounting and auditing standards in the private sectors (Article 9).

Moreover, the UNCAC mandates that state parties criminalise a broad range of corrupt acts, such as bribery of national and foreign public officials and officials of public international organisations (Articles 15–16), bribery in the private sector (Article 21), embezzlement (Articles 17, 22), trading in influence (Article 18), abuse of functions (Article 19) and illicit enrichment (Article 20). Additionally, measures deliberately carried out in support of corruption, such as money laundering (Article 23), concealment (Article 24) and obstruction of justice (Article 25), must be criminalised as offences under domestic laws.

In comparison to other regional anti-corruption conventions, the UNCAC’s emphasis on establishing preventive measures is a groundbreaking initiative aimed at eradicating corruption at its roots. Meanwhile, the criminalisation of a wide range of corrupt acts under the UNCAC has the potential to encourage the development of robust domestic anti-corruption laws and regulations.

2.1.2 Obligations of Cooperation

Due to the inherent concealment feature of corrupt activities and the rising incidence of transnational corruption in international business, concrete measures of international cooperation are vital against transnational corruption. The UNCAC recognises this as one of its three purposes and explicitly states it in the convention’s first article.

Article 1. Statement of purpose

The purposes of this Convention are:

…

(b) To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery.

To fulfil this objective, the UNCAC includes a specific chapter (Chapter IV) entitled ‘International Cooperation’, which covers cooperation in areas such as extradition, transfer of sentenced persons, mutual legal assistance in investigations, prosecution, judicial proceedings, transfer of criminal proceedings and law enforcement. Additionally, the UNCAC has separate provisions on cooperation in other chapters, such as Article 37 (cooperation with law enforcement authorities), Article 38 (cooperation between national authorities) and Article 39 (cooperation between national authorities and the private sector).

However, it should be noted that states are only obligated to cooperate in criminal matters. For civil and administrative matters and issues related to private sector entities, states are only encouraged to cooperate. This provision is considered weak since cooperation with private sectors, such as banks, is essential in identifying corrupt transactions during investigation and prosecution proceedings.⁸

It is crucial for Asian countries to take their obligations under the UNCAC seriously, particularly those related to cooperation. While obligations of criminalisation within domestic legal frameworks are equally important, failure to cooperate may have significant transnational effects. Non-compliance of obligations in the UNCAC could further lead to international litigation proceedings and state responsibilities. The recent case of Equatorial Guinea’s initiation of proceedings before the ICJ against France is an example of this. Equatorial Guinea claimed that France failed to comply with the cooperation obligation on asset recovery as outlined in the UNCAC.⁹ Arguably, this case is the first to be raised under the compromissory clause in UNCAC Article 66 (allowing a state to request arbitration, and otherwise approach the ICJ, unless the other state has made a reservation). This case will have far-reaching implications on how member states should collaborate with each other to repair harm caused by corruption.¹⁰

2.2 Other International Instruments

Apart from the UNCAC, there are numerous supplementary non-binding instruments, guidelines and standards related to anti-corruption that are applicable to, or can serve as references for, states in Asia. These documents have been adopted under various frameworks or initiatives and cover different jurisdictions within Asia.

2.2.1 OECD

The OECD has taken significant steps towards combating corruption through its adoption of the OECD Anti-Bribery Convention,¹¹ as well as a range of recommendations focused on various aspects of corruption deterrence and integrity promotion.¹² To monitor the implementation and enforcement of these instruments, the OECD has also established the OECD Working Group on Bribery.¹³

A few Asian nations, notably Korea and Japan (plus Israel and Turkey, on a wider definition of Asia), as OECD member states, have ratified the OECD Anti-Bribery Convention and adhered to all the related documents on anti-corruption. Meanwhile, some non-member Asian countries have committed to one or more of the OECD recommendations on anti-corruption and integrity. For instance, Jordan and Kazakhstan are adherents to the OECD Recommendation of the Council on the OECD Due Diligence Guidance for Responsible Business Conduct (2022). This recommendation seeks to establish clear guidelines and a fair and competitive environment for business regarding their obligations to perform due diligence for responsible business conduct.¹⁴ India, Timor-Leste and Thailand have joined the second part of the OECD Declaration on the Fight against Foreign Bribery—Towards a New Era of Enforcement (2016).¹⁵ These countries have therefore committed to fully implementing their international obligations regarding foreign bribery and corruption, in line with the OECD’s anti-corruption efforts.

The OECD has, jointly with the Asian Development Bank (ADB),¹⁶ further established the ADB/OECD Anti-Corruption Initiative for Asia and the Pacific in 1999. This initiative serves as a crucial platform where policymakers, practitioners, experts and private sector representatives can share their knowledge and experiences in promoting anti-corruption and business integrity.¹⁷ This initiative has involved 34 countries in Asia and the Pacific, including Asian jurisdictions such as China and Hong Kong, India, Indonesia, Japan, the Philippines, Singapore, Thailand and Viet Nam.

To help governments in the region implement anti-corruption measures voluntarily, this initiative has adopted the ADB/OECD Anti-Corruption Action Plan, establishing a comprehensive set of principles and standards towards police reform.¹⁸ The initiative is vital for Asian countries to collaborate and comply with their UNCAC obligations, as it aims to effectively implement the international standards outlined in the UNCAC through capacity building, mutual assistance and regional cooperation.¹⁹

Additionally, countries such as Armenia, Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan, Mongolia, Tajikistan, Turkmenistan and Uzbekistan have also participated in the OECD Anti-Corruption Network (ACN) for Eastern Europe and Central Asia. The OECD/ACN serves as a platform for promoting anti-corruption activities, sharing information, developing best practices and coordinating donors, and operates through various means such as general meetings, conferences, sub-regional initiatives and thematic projects.²⁰

2.2.2 G20

The G20, an influential group of the world’s largest economies including China, India, Indonesia, Japan, Korea and Turkey, has taken steps to combat corruption through a series of anti-corruption instruments. These countries have made a strong commitment to tackle corruption within their own jurisdictions and through international cooperation. In 2010, the G20 established the Anti-Corruption Working Group, which regularly releases Anti-Corruption Action Plans to guide anti-corruption efforts.²¹ The latest of these plans is the G20 Anti-Corruption Action Plan 2022–2024, which emphasises the importance of practical cooperation among countries, particularly in relation to enforcing anti-corruption laws.²²

Since 2009, G20 leaders have made commitments against corruption in various aspects, with a focus on criminalising bribery through domestic legislation, strengthening international cooperation against corruption, explicitly referencing the UNCAC and/or the OECD Anti-Bribery Convention, calling for the denial of safe havens for corruption, and involving the participation of multiple stakeholders. Table 5.3 indicates the main coverage of the G20 Leaders’ Declarations.

Table 5.3 Anti-corruption commitments in G20 declarations

Further analysis of the G20 anti-corruption commitments reveals several noteworthy observations. Firstly, despite the G20 recognising the need to tackle corruption from multiple angles, it is important to acknowledge that all of the anti-corruption policies and commitments outlined in these declarations remain non-binding. This raises questions about the actual impact of these commitments in combating corruption.

Secondly, while some of the G20 commitments overlap with existing universal anti-corruption legal frameworks such as the UNCAC and OECD Anti-Bribery Convention, others represent a good complement to these frameworks. The 2021 G20 Rome Leaders’ Declaration, for instance, recognises the need to fight against ‘any new and sophisticated forms of corruption’,²³ which is an important acknowledgement of the evolving nature of corrupt activities. Additionally, the G20 has recognised the interplay between corruption and other issues, such as gender (2019 Declaration),²⁴ wildlife and natural resources (2017 Declaration),²⁵ and human rights (2016 Declaration).²⁶ However, while these acknowledgements are important, concrete and effective, measures to prevent bribery and corruption in these areas are still missing.

Thirdly, it is worth noting the G20’s references to the UNCAC and the OECD Anti-Bribery Convention in their efforts to combat transnational corruption. For instance, the 2020 Declaration placed emphasis on the need for domestic legislation and other relevant measures to align with Article 16 of the UNCAC, which addresses bribery of foreign public officials and officials of public international organisations. This recognition of the existence of cross-border corruption highlights the importance of international cooperation in the fight against corruption. Moreover, the G20’s acknowledgment of the UNCAC and OECD Anti-Bribery Convention demonstrates their commitment to building on the existing legal frameworks to combat corruption and ensure a level playing field for businesses operating in different countries.

2.2.3 ASEAN

As a significant intergovernmental organisation in Asia, ASEAN has made considerable efforts to promote anti-corruption measures. Although there is no binding, hard law, anti-corruption agreement that applies to all ten member states, there are several instruments that have stressed the importance of combating corruption from various aspects. The ASEAN Political-Security Community Blueprint 2025 is a prime example of this, highlighting the commitment to ‘instil[ling] the culture of integrity and anti-corruption and mainstream the principles thereof into the policies and practices of the ASEAN Community’.²⁷

Moreover, the ASEAN Blueprint 2025 emphasises the implementation of international cooperation in accordance with the UNCAC, and the need to enhance regional collaboration on anti-corruption, as well as to work at the national level through appropriate agencies or organisations. The ASEAN Blueprint 2025 also recognises the crucial role of financial intelligence units in preventing and combating corruption, calling for increased cooperation among these units in the collection, analysis and dissemination of information regarding potential money laundering. The Blueprint’s focus on international cooperation and the role of financial intelligence units underscores ASEAN’s commitment to combating corruption and promoting transparency in the region.

The Memorandum of Understanding (MoU) on Cooperation for Preventing and Combating Corruption (2004) is another crucial instrument that deserves attention. It lays out two key objectives: first, to promote the establishment and strengthening of collaborative efforts among ASEAN member states to prevent and combat corruption; and second, to enhance capacity and institutional building in anti-corruption measures.²⁸ The MoU serves as a framework for ASEAN member states to cooperate in the fight against corruption, providing a platform for the exchange of information and best practices, as well as capacity building and technical assistance. By working together through this MoU, ASEAN member states can develop more effective strategies to prevent and combat corruption, ultimately contributing to the promotion of good governance and sustainable development in the region.

ASEAN has consistently reaffirmed its commitment to combating corruption on numerous occasions, including at the Eighth ASEAN–US Summit²⁹ and the East Asia Summit.³⁰ The East Asia Summit Leaders’ Declaration on Anti-Money Laundering and Countering the Finance of Terrorism,³¹ as well as the ASEAN–China Strategic Partnership Vision 2030,³² have also emphasised the importance of anti-corruption efforts. While ASEAN’s continuing support for anti-corruption efforts is commendable, crucially again these commitments and references remain in the realm of abstract and non-binding soft law, which lacks the necessary teeth to ensure effective implementation and enforcement. Without tangible, concrete measures to back up these statements, they may remain mere lip service, and the fight against corruption may continue to face significant challenges in the ASEAN region.

2.2.4 Belt and Road Initiative

The Belt and Road Initiative (BRI) is a major economic strategy developed by China since 2013, which has significant implications for Asia. Although there are few instruments in place, the Beijing Initiative for the Clean Silk Road, issued at the Second Belt and Road Forum for International Cooperation in April 2019, is one instrument for dealing with corruption.³³ The Beijing Initiative calls for stronger cooperation towards a ‘Clean Silk Road’, in line with the spirit of the UNCAC. It proposes several measures, including enhancing the transparency of government information, strengthening the supervision and administration of Belt and Road cooperation projects, preventing and controlling corruption risks, developing codes of conduct and resisting business bribery. Furthermore, it emphasises the need to strengthen the exchange of personnel, information and experience among relevant anti-corruption agencies to combat corruption effectively.³⁴

The BRI has, for the first time, recognised the importance of transparency and integrity in addressing corruption and bribery through robust legal systems.³⁵ However, the Beijing Initiative, which touches on some anti-corruption aspects, is again a soft law instrument that does not impose significant obligations on countries participating in the BRI. Additionally, it has been pointed out that many BRI partner countries lack the regulatory capacity to combat corruption, particularly on large projects where there is an unrestricted flow of money, sometimes back to China.³⁶

The United Nations Office on Drugs and Crime (UNODC) has taken a proactive approach to address corruption concerns in the BRI through its project ‘Fostering Sustainable Development by Supporting the Implementation of UNCAC in Countries along the Silk Road Economic Belt’. Countries such as Armenia, Azerbaijan, China, Georgia, Iran, Kazakhstan, Kyrgyzstan, Mongolia, Tajikistan, Turkey and Uzbekistan have joined this initiative.³⁷ The project aims to establish an anti-corruption network to facilitate international cooperation and knowledge sharing in preventing and combating corruption in international investment projects.³⁸ To this end, two regional workshops have been conducted under this project, which has delved into practical approaches to prevent corruption, such as corruption risk assessment and corruption proofing of legislation.³⁹ While this initiative is relatively new, more tailored anti-corruption policies are expected to be developed, taking into account the unique features of the BRI.

3 Anti-Corruption Movements in International Investment Agreements

IIAs with ACPs constitute a vehicle that solidifies the international consensus on the illegality of corruption in international investment and the need for prevention. The forms, uses of language and potential effects of emerging ACPs in IIAs present diversity. The allocation of the anti-corruption onus by ACPs also varies. While some provisions implicate the legal consequences of the corrupt act by investors, some focus on the efforts of states. The objective of this section is to explore and demonstrate different categories of ACP-making practices within the region of Asia.

3.1 Collecting ACPs

The United Nations Conference on Trade and Development (UNCTAD) IIA Mapping Project indicates that, globally, there have been 45 out of 2584 mapped IIAs that expressly mention the term ‘corruption’ in at least one of their clauses.⁴⁰ Among these 45, ten of the treaties demonstrating the existing treaty-making practices within Asia are concluded by Japan with other Asian states.⁴¹ These Japan-related IIAs do express states’ commitments to combat corruption in investment activities; however, their practical impact seems unclear from the abstract language of the provisions. To take a closer look, the ‘Measures Against Corruption’ articles of the Japan-related IIAs all share common features in their structures and wordings, providing abstract commitments of contracting states. Concrete measures for states or guidelines for tribunals are absent. ACPs of this type are analysed later in this chapter.

However, the UNCTAD database mapping is outdated. Some unmapped, more recent, intra-Asian IIAs have incorporated provisions with explicit references to corruption, to be discussed next. Based on a new pool of Asian IIAs, this chapter builds a typology of ACPs and discusses the characteristics of each type of ACP in the typology.⁴²

The new pool of IIAs focused on in this chapter identifies 89 IIAs, signed since 2012, in total. This draws a significant line because it occurred when a series of crises in various aspects of societies worldwide, such as food security, energy, finance and the environment, were pushing and reshaping global development policies. As a result, a new generation of investment policies emerged with an important feature of pursuing responsible investment.⁴³ In other related areas, such as human rights protection, the IIAs concluded after the adoption of the Sustainable Development Goals Agenda by the United Nations General Assembly in 2015 are regarded as ‘new IIAs’.⁴⁴ Moreover, a turning point from around 2010 has also been evidenced in the IIA rulemaking of some individual states. As an effort to preserve more regulatory space and promote the health and welfare of the society under the impact of international investment, the US Model BIT published in 2012 confirms the trend of espousing the beneficial, societal functions of international investment in host states.⁴⁵ In sum, the investigation of IIAs concluded between or among Asian countries since 2012 aims to show whether and how the IIA rulemaking in the region has responded to the call for promoting more responsible investment by the means of regulating corruption-tainted investment activities.

According to the UNCTAD database, since 2012, there are 89 newly signed IIAs that have been concluded between or among Asian countries. Among them, the full texts of 70 IIAs are currently available for the study of this chapter, which exhaustively searched the IIAs in the pool for any references to ‘corruption’ in the texts. It identified 16 ACPs. To clarify, 15 IIAs in the pool have incorporated ACPs; one IIA, India–Kyrgyzstan BIT (2019), contains two types of ACP.

3.2 Variations in ACPs

There are four main types of ACP addressing corruption in international investment. These provisions focus on different actors—states or foreign investors—in international investment activities. They also have varied levels of clarity with respect to the measures for host states or to the consequences of any violations by foreign investors or public officials of host states. In general, it seems that the recent, relevant IIA-making practices in Asia have brought more varied types of ACP and more nuances in content.

The first category of ACPs is the ‘Direct Investor Obligation’ Provision (‘Category A’). This type of ACP, in a direct fashion, could be ideally effective in regulating investors’ behaviour and facilitating arbitral tribunals’ reasonings if any breach of obligations arises. However, in the region, states have not expressed their agreement in IIAs to officially impose any direct obligation of anti-corruption on investors.⁴⁶

In line with the efforts to tilt the imbalanced IIA regimes by limiting protection accorded to foreign investors, some contracting states include provisions that guide tribunals to refuse to provide an investor with treaty protection if there exists the investor’s corrupt misconduct. Under these ACPs, the investor’s access to dispute settlement mechanisms provided by the IIAs could be precluded. This second type of ACP—namely the ‘Preclusion of Access to Arbitration’ Provision (‘Category B’)—can be identified, but it remains very rare in the stock of the intra-Asian IIAs.

Another type of rulemaking practice echoing the call for anti-corruption measures in international investment is the addition of statements of contracting states’ commitments to enforcing anti-corruption measures. Unlike the Direct Investor Obligation Provision that attempts to influence the substances of the rights-and-obligations relationship between investors and host states, these statements affirm states’ obligation of anti-corruption. There exist various forms of statements made by states globally.⁴⁷ Statements that present contracting states’ general commitments in abstract language are prevalent in Asia. The Statement of State Commitments Provisions (‘Category C’) constitutes the third type.

The fourth approach of ACP-making is to express states’ anti-corruption concerns by incorporating a Corporate Social Responsibility (CSR) Provision (‘Category D’). This normally encourages foreign investors to adopt internationally acknowledged corporate social responsibility principles, though in fact it does not create binding international obligations on the investors.⁴⁸ In this chapter we observe that, in Asia, only one CSR provision in an IIA directly refers to ‘corruption’.

Table 5.4 presents the number of identified ACPs in each category.

Table 5.4 A typology of ACPs in Asian IIAs

In a nutshell, in concluding the observed IIAs, states in the region have used different approaches for addressing corruption. Among the approaches, the provisions reaffirming states’ commitments are the most widely adopted. By contrast, other regimes such as investors’ obligation and the preclusion of access to investor–state dispute settlement (ISDS) mechanisms are not or scarcely espoused in the current rulemaking practices. States in Asia are cautious about directly imposing an anti-corruption obligation on investors or inviting the ‘threat’ of refusing remedies.

3.3 Category A: Direct Investor Obligation of Anti-Corruption

The first group of ACPs is aimed at enhancing the compliance of foreign investors with anti-corruption norms by directly imposing the obligation on foreign investors. The potential emergence of IIA provisions including investor obligations is of particular significance because it suggests an inclusion of investors’ obligation and accountability in ISDS at the normative level and may influence the reasoning of arbitral tribunals in cases involving corrupt allegations raised by host states.⁴⁹ It is also expected that IIAs with specific investor obligation provisions could level up the investor’s accountability to the plane of international investment law so as to strike a desired balance of the rights-and-obligations relationship between investors and host states.⁵⁰

However, the investor obligation provisions deviate from the traditional IIA regimes which primarily focus on investor protection. It could be painstaking for some states to ‘reset’ their international investment relations with their contracting partners. In Asia, states have not incorporated ACPs containing the investor obligation of anti-corruption into their IIAs.

With the provision imposing an obligation on foreign investors, some investment agreement models are designed to encourage more responsible IIA rulemaking. For instance, the Model Agreement 2005 issued by the International Institute for Sustainable Development (IISD Model Agreement) stipulates a model provision that directly imposes an obligation of anti-corruption on foreign investors. Article 13 of the IISD Model Agreement provides:

Investors and their investments shall not, prior to the establishment of an investment or afterwards, offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a public official of the host state, for that official or for a third party, in order that the official or third party act or refrain from acting in relation to the performance of official duties, in order to achieve any favour in relation to a proposed investment or any licences, permits, contracts or other rights in relation to an investment.⁵¹

This is a strict and comprehensive stipulation of the investor obligation of anti-corruption. A clear value is that the provision incorporates an explicit investor obligation, providing that investors shall not conduct corrupt acts or be complicit in any corrupt activities. Moreover, the period of monitoring provided by the provision is extensive—from the establishment of an investment to the stages afterward. Additionally, after this general expression of the obligation of anti-corruption, the IISD Model further indicates the scope of acts that may constitute corruption. This model provision represents a strict regulatory approach.

What is disappointing is that, up to now, states in the region of Asia have not concluded any IIAs that include any provision directly imposing anti-corruption obligations on investors. This observation about the ACP-making is actually in line with the efforts addressing challenges in other aspects of the reform of IIA regimes. The criticism has been made that the new-generation IIAs still do not incorporate public policy concerns in their substantive provisions. The consideration of public interests has been merely expressed in the forms of exceptions, recommendations and state commitments rather than imposing obligations on states or investors.⁵² Nevertheless, as discussed in the following sections, a promising point is that states have started to use other regimes expressed in IIAs to bring in legal consequences for investors’ misconduct.

3.4 Category B: Preclusion of Access to Arbitration

The carve-out approach is an apparatus used by states to preserve regulatory space so as to strike the balance between investor protection and effective regulation.⁵³ It is possible to observe provisions addressing corruption issues through limiting foreign investors’ access to the ISDS system. ACPs possibly precluding investors’ access to dispute settlement regimes represent an approach adopted by a minority of states, at least, in the region of Asia.

Incorporating ACPs stating that wrongdoers of corruption concerning the investment at issue are not entitled to the dispute settlement mechanisms under the IIA is one of the tools adopted by some states in the new generation of IIAs. Regardless of the debate concerning whether the preclusion-of-access approach could overlook the accountability on both the demand and supply sides of a corrupt act, it still represents an innovative step towards imposing an anti-corruption onus on investors. At least, this type of ACP brings in a legal consequence for the investor who committed corruption in relation to the investment.

For instance, the Comprehensive Economic Trade Agreement (CETA) between Canada and the European Union (EU) explicitly adopts the preclusion-of-access approach. Article 8.18(3) of the CETA provides: ‘for greater certainty, an investor may not submit a claim under the dispute resolution section if the investment has been made through corruption’.⁵⁴

Among the 70 intra-Asian IIAs concluded since 2012, very few have adopted ACPs with this feature. An Asian example adopting CETA’s method is the Indonesia–Korea Comprehensive Economic Partnership Agreement (CEPA) (2020). In the Indonesia–Korea CEPA, Article 7.19, paragraph 3 provides:

No claim may be brought under this article, regarding investor-state dispute settlement, in relation to an investment that has been established through illegal conduct including fraudulent misrepresentation, concealment or corruption.⁵⁵

Accordingly, an investor will be barred from resorting to the ISDS mechanism if a corrupt act of the investor tainting the investment during its establishment has been established. This kind of ACP explicitly clarifies the possible legal consequence of a corrupt act by a foreign investor.

In addition to the rulemaking practice between Indonesia and Korea, India’s Model BIT⁵⁶ and its recent treaty-making practice are worth mentioning as well. In the Indian Model BIT (2015), the scope of ISDS specifically excludes claims in relation to investments that have been tainted by corruption.⁵⁷ The ambition of the Indian Model BIT has been reflected in one of the latest BITs signed between India and Kyrgyzstan. Some point out that this series of India’s treaty-making practices, to some extent, has been dedicated to carving out regulatory space for the host states by making fewer or weaker commitments to investor protection.⁵⁸ Specifically, Article 13.4 of the India–Kyrgyzstan BIT (2019) provides:

[a]n investor may not submit a claim to arbitration under this Chapter if the investment has been made through fraudulent misrepresentation, concealment, corruption, money laundering or conduct amounting to an abuse of process or similar illegal mechanisms.⁵⁹

Several points of this sort of ACP should be highlighted. First, all the above provisions from different IIAs merely cover corrupt acts that occur during the ‘establishment’ of the investment. In other words, the corrupt acts of an investor that happen during the operational stages of an investment will not preclude the investor’s access to the dispute settlement mechanism.

Second, the practical potential of this type of ACP remains unclear. For states to trigger a possible (counter-)claim under an IIA before an investment arbitral tribunal, the right of the state to initiate a claim and the treaty obligation of the investor, which is allegedly breached, are both required. A provision as such, precluding an investor’s claim to the dispute settlement mechanism, does not provide any explicit indication as to whether a claim for the state or an obligation of the investor exists.

Third, the provisions do not contain the criteria regarding the extent to which an investor who has committed corruption could lead to the preclusion. Tribunals may desire a more detailed set of rules to make the decision. The lacuna of the effectiveness of this type of ACP requires further interpretation.

Last, but not least, this category of ACP raises the concern that the effects of the preclusion of access to arbitration could ‘over-balance’ the right-and-obligation relationship between investors and host states—arguably depriving a foreign investor of the right to arbitration.⁶⁰ This could be an issue especially in the context of corruption, where the accountability could lie on both the demand and supply sides of a corrupt act.⁶¹ Moreover, this approach could deviate from the original desire to lift up corruption problems in international investment to the level of international investment law. If an investor is barred from resorting to an investment tribunal because of his corrupt act, the remaining issues concerning the investment would be downgraded to the domestic level. Closing the ‘door’ might not necessarily be the correct approach to settling issues.

3.5 Category C: State Commitments

Another prevalent type of ACP-making in the intra-Asian IIAs is to incorporate contracting parties’ commitments to fight against corruption. Nevertheless, the states that have adopted this approach are not diversified. Japan, the primary user of this type of ACP, has inserted these ‘Measures Against Corruption’ provisions—demonstrating an abstract commitment of state parties to anti-corruption—in IIAs with other Asian countries or contracting parties globally. The structure and language of all these ACPs are basically the same, as mentioned above. The Japan–Cambodia BIT (2007), representing a new generation of its IIAs,⁶² is one of the earliest and typical, providing:

Each Contracting Party shall ensure that measures and efforts are undertaken to prevent and combat corruption regarding matters covered by this Agreement in accordance with its laws and regulations.⁶³

This type of provision constitutes one of the attempts in an embryonic stage by states to address corruption issues at the international level. Although the obligation of states has been reiterated, it seems that resolution of relevant corruption issues is shifted to the domestic level and relies on state parties’ domestic regulation and enforcement. However, such IIAs could be ambiguous for investment tribunals tackling corruption issues.⁶⁴ To be specific, how an arbitrator should decide the consequences of corruption largely remains unclear and contested under the IIAs with such general provisions. As this sort of ACP, containing weak-form state commitments, is one of the major modes of IIA-making, one can reasonably see that there are few ACPs with real teeth upon which regulation can be effective.

In the Regional Comprehensive Economic Partnership (RCEP) (2020)⁶⁵ and the Indonesia–Singapore BIT (2018),⁶⁶ states also address the significance of anti-corruption in the promotion of international investment and emphasise the onus on the contracting parties to take measures against corruption. The practices, inserting states’ general commitments to anti-corruption in investment agreements, reflect one aspect of the performance of the states’ international obligations of anti-corruption. However, it is regrettable that IIA rulemaking still prefers ambiguity or silence, largely leaving discretionary decision-making to arbitrators. Up to now, the applicability or effects of these abstract states’ statements have not been examined by arbitral tribunals. It is highly preferable that states should include ACPs with unambiguous standards or concert measures for host states,⁶⁷ which has not yet been met in the stock of the young intra-Asian IIAs.

3.6 Category D: CSR Provisions

Inserting CSR provisions has been adopted by some states, which is comparatively prevalent among the IIAs in this study’s pool. In general, adding investors’ CSR to IIA regimes is a distinctive aspect of a growing number of new-generation IIAs.⁶⁸ Normally, the CSR provisions are also drafted in a general manner. For example, investors are merely ‘encouraged’ to ‘incorporate into their internal policies those internationally recognised standards, guidelines, and principles of corporate social responsibility’.⁶⁹ Thus, the unanswered question is whether anti-corruption is part of ‘those internationally recognised standards, guidelines, and principles’. What is more, because of the abstract language of such provisions, it is unclear whether an investor’s anti-corruption obligation has been woven into the CSR provisions. A debate is ongoing concerning whether the reference to informal standards and principles could contribute to the imposition of investor obligations at the level of international investment law.⁷⁰ However, some believe that all these CSR provisions, often emphasising their voluntary nature, do not introduce any binding obligations on foreign investors to the IIA regimes.⁷¹

It is true that addressing anti-corruption concerns by the CSR provision is not a common type of IIA-making practice. Some contracting states of the intra-Asia IIAs do explicitly bridge the abstract CSR ‘principles’ with anti-corruption norms, making it clear that anti-corruption is one of the social responsibilities that a foreign investor should take on. For example, the Indian Model BIT (2015) inserted a CSR provision with some clarifications. In this Model BIT, one can see that the language of the non-binding content is even stricter than the language in other CSR provisions drafted in an abstract way. It provides:

[I]nvestors and their enterprises … shall endeavor to voluntarily incorporate internationally recognized standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the Parties. These principles may address issues such as labour, the environment, human rights, community relations and anti-corruption.⁷²

Moreover, the Indian Model BIT (2015) has influenced the substance of India’s recent IIA-making practices. Among the intra-Asian IIAs, there is one IIA—the India–Kyrgyzstan BIT (2019)⁷³—that has directly mentioned investor’s social responsibility in relation to corruption in its CSR provision. There are two distinctions between the India-style CSR provision and the CSR provisions with broad language. First, given that investors are ‘obliged’ to endeavour in the Indian Model BIT, it seems that India and its contracting party may intend to ‘encourage’ investors to incorporate CSR standards as strongly as possible. Second, the Indian Model BIT and the recent BIT between India and Kyrgyzstan have eradicated the vagueness remaining in other abstract CSR provisions by specifically explaining that the contents of the ‘principles’ include anti-corruption norms.

In the BIT signed by Singapore with its contracting party outside the region of Asia, it seems that the contracting states can take a ‘bifurcated’ approach of incorporating a CSR provision, which manifests that states have different requirements of CSR on investors. In the Nigeria–Singapore BIT (2016), Nigeria specifically provides that the principle of CSR includes the principles addressing anti-corruption issues that stand in parallel with issues such as the environment, human rights and public health.⁷⁴ In contrast, regarding CSR, Singapore makes an independent statement that adopts the abstract approach without clarifying what the principles that have been endorsed or are supported by Singapore include.

All in all, the 2015 Indian Model BIT attempts to modify the asymmetry of traditional IIA regimes, that is, the investment treaties are always silent on investors’ obligations, by requiring investors to voluntarily work on addressing anti-corruption issues. Although the 2015 Indian Model BIT has been an important milestone reflecting treaty reforms, this provision is still in a form of an endeavour clause. In this sense, the provision itself cannot be enforced and does not provide tribunals with any guidelines to deal with problems in regard to investors’ relevant corrupt acts. Also, the absence of explicits investor obligations does not help remove the obstacle that the host state lacks grounds for bringing counter-claims targeting an investor’s corrupt wrongdoings and holding the investor accountable.

Last, but not least, because the scope of the terms in a typical CSR provision, such as ‘standards’ and ‘statements of principle’, seems open-ended, it is possible for contracting states to specify the concrete contents of such ‘standards’ and ‘principle’. In practice, some IIAs provide that investors are responsible for complying with domestic laws or may specifically oblige investors to comply with certain standard of practices. For example, under Article 24 of the Morocco–Nigeria BIT (2016), investors are specifically required to comply with environmental impact reporting practices. Nevertheless, regarding issues of anti-corruption, the IIAs in the pool or the observed CSR provisions have not incorporated specific anti-corruption social responsibility or relevant standards of conduct. Given the example of the Morocco–Nigeria BIT, it would be a promising IIA rulemaking practice for states to specify the CSR provision with detailed anti-corruption standards.

4 New Opportunities for Anti-Corruption Cooperation for States in Asia

Despite the current difficult circumstances for corruption in Asia, it is important to acknowledge the persistent efforts made by states regionally over the years to combat this issue. Through the implementation of domestic laws and policies, as well as international and regional cooperation, significant progress has been made in legislation and policy decisions surrounding anti-corruption, leading to positive effects on corruption prevention overall. However, it is essential to recognise that there is still a long way to go. There are many challenges to overcome, including the lack of regulatory capacity in some countries and the complex nature of corruption, which often involves multiple actors and intricate networks. To build on the progress that has been made, there is a need for continued commitment, innovation and collaboration between states and other relevant stakeholders. Specifically, this chapter has recommended that Asian countries reinforce the legal framework of anti-corruption in the region and insert more commitments to corruption deterrence and prevention into IIAs.

4.1 Reinforcing the Legal Framework of Anti-Corruption

Although it is essential for Asian states to ratify and accede to the UNCAC as an initial step towards combatting corruption, the current implementation of this treaty leaves much to be desired. While the UNCAC provides for the criminalisation of numerous corruption offences, such as bribery of foreign public officials and officials of public international organisations, the enforcement and sanctioning of these offences remain inadequate in many states. This is a crucial issue, as effective investigation and punishment of corrupt activities are necessary to deter such behaviour and promote accountability.

To fully comply with the UNCAC, Asian states should expand their definition of public officials to include any person holding a legislative, executive, administrative or judicial office. Unfortunately, many jurisdictions in Asia fall short of this requirement in their current legislation. Additionally, states should consider accelerating enactment of legislation against the bribery of foreign public officials and impose liability, including criminal, civil or administrative sanctions on legal persons (not just individuals) for domestic and foreign bribery. Few states have fully carried out these obligations, leaving significant room for improvement in their anti-corruption efforts. By taking decisive action in these areas, Asian states can demonstrate their commitment to combatting corruption and promoting transparency and integrity in their societies.⁷⁵

Several Asian countries have established specific anti-corruption legislation, either as independent statutes or integrated into their criminal or civil laws. For example, Bangladesh, Bhutan, Cambodia, India, Indonesia, Mongolia, Nepal, the Philippines, Sri Lanka and Vietnam have enacted separate anti-corruption decrees, while China, Japan, Kazakhstan, the Kyrgyz Republic, Pakistan and Thailand have included anti-corruption provisions within their existing legal frameworks.⁷⁶ Nonetheless, to enhance anti-corruption efforts in the region, it is necessary to further promote the adoption of international anti-corruption standards into domestic laws, as recommended by the UNCAC. This would facilitate a more comprehensive and unified approach to tackling corruption across different jurisdictions and provide a stronger legal basis for holding corrupt individuals and entities accountable.

In addition, Asian states could explore the possibility of concluding a regional anti-corruption convention to further strengthen their anti-corruption efforts. Such a convention could ‘harden’ some of the region’s non-binding commitments while taking into account the varying legal regimes and practices of each state. By establishing tailored standards that are not lower than those outlined in the UNCAC, a regional convention could provide a framework for increased regional cooperation and facilitate the sharing of best practices in anti-corruption efforts. Moreover, a regional treaty could establish a special mechanism to monitor and evaluate the implementation of its provisions, helping to ensure that the agreed-upon standards are effectively enforced. Through this approach, Asian states could build upon the progress that has already been made and work towards a future where corruption is no longer a major impediment to sustainable economic and social development in the region.

4.2 Inserting Anti-Corruption Objectives into IIAs

At present, only a small number of existing IIAs signed between or among Asian states have incorporated ACPs. Direct anti-corruption obligations on investors in the course of obtaining and performing investments are essential to anti-corruption movements in international investment. However, among these ACPs, very few directly focus on investors as the suppliers of corruption, or impose concrete obligations. Although still controversial, investor obligations are likely to hold private wrongdoers accountable and effectively influence investor behaviour. Future IIAs could regulate corruption in international investment by inserting provisions directly imposing anti-corruption obligations on investors.

As one type of ACP-making, some IIAs incorporate CSR provisions intending to encourage more responsible investment. However, only a few observed CSR provisions specifically connect corporate social responsibility with anti-corruption. The language of many CSR provisions is often abstract, so the practical value of which and how tribunals can apply them in cases is unclear. In addition to reaffirming the importance of curbing corruption and states’ commitments that have been made in the international anti-corruption conventions, more concrete measures that states can resort to at a domestic level should be specified in the IIAs. Compared to the anti-corruption clauses with abstract language and obscure contents, this can promote the effectiveness of anti-corruption efforts and further encourage states to perform their international anti-corruption obligations under those conventions.

In this study’s pool of ACPs, some have the effect that a corrupt act relating to the investment can preclude an investor’s access to dispute settlement mechanisms. These provisions with the effect of precluding an investor’s access to the ISDS system is strict and may effectively deter corrupt behaviour of private entities. Nevertheless, only two ACPs of this type have been observed in the pool. Even if this approach is likely to be effective, it is noteworthy that there exists a concern about whether completely blocking the investor’s access to dispute resolution mechanisms, pushing the investor to resort to the host state’s domestic system, is the right solution to resolve corruption matters in international investment. Moreover, countries should be cautious about the practical effect of such ACPs, which is likely to jeopardise investors’ confidence in the investment environment.

Lastly, some Asian countries, such as Japan, insert ACPs announcing state parties’ commitments to combat corruption in international investment. These commitments could contain more details about measures for states to take or the consequences of a breach of the commitments. Overall, this type of ACP focuses on states’ efforts rather than the activities of foreign investors. For coherence and predictability of investment tribunals’ decisions, such ACPs announcing states’ international obligations or commitments should be more specific and concrete as to the burdens on states, by, for instance, specifically referring to the UNCAC as the widely acknowledged international anti-corruption instrument, and containing quite detailed anti-corruption measures for state parties.

5 Conclusions

Corruption poses significant challenges to various aspects of society, and its presence in Asia is a cause for concern. Nevertheless, countries in the region have made efforts to combat corruption by acceding to international anti-corruption conventions like the UNCAC and the ADB-OECD Anti-Corruption Initiative, and implementing these instruments’ obligations and commitments.

However, serious challenges remain in the fight against corruption and to develop innovative and effective solutions to address them. For the greater effectiveness of anti-corruption efforts, it is crucial to address corruption in all its aspects, including international investment activities. States can strengthen their legal frameworks by criminalising a wide range of corruption offences, including bribery of foreign public officials and officials of public international organisations, and by investigating, enforcing and sanctioning these crimes. Asian countries should also consider ‘hardening’ some of the non-binding commitments in international anti-corruption conventions to strengthen their anti-corruption efforts.

It is also recommended that ACPs be included in future IIAs. In addition, states should incorporate more ACPs with ‘real teeth’, such as ACPs providing investors’ anti-corruption obligations or ACPs with carve-out effects. As explained above, the direct investor anti-corruption obligation expressed in IIAs does not seem appealing to some states and requires a significant breakthrough in the traditional IIA framework, under which investors only enjoy rights but no obligations. Also, the ACPs adopting the carve-out approach, which deprives investors of access to ISDS, lack interpretations and applications in practice. Another more favourable approach is to affirm states’ international obligations against anti-corruption. Going beyond merely reiterating abstract commitments by states, this type of ACP should include more detailed requirements and references to international instruments with relevant specific requirements imposed on states.

With more and better ACPs in IIAs, arbitral tribunals will become more likely to play a role in adjudicating cases with corruption issues based on IIAs. For example, investors’ anti-corruption obligations may give rise to states’ counter-claims concerning relevant corrupt acts of investors. Additionally, investors’ ‘best-endeavours obligation’, as stipulated in some CSR provisions, can constitute another ground for tribunals to consider the consequences of an investor’s corrupt misconduct. Through tackling corruption issues at the international level, tribunals can create more possibilities of creating coherent and predictable jurisprudence regarding corruption-tainted investment cases. The value of practically applying the ACPs before tribunals not only lies in ensuring wrongdoers ‘pay for’ their misconducts but also in encouraging more responsible investment into the future.

All in all, combating corruption is an arduous task, especially in Asia. It requires unwavering political will, zero tolerance for corrupt practices, and increased bilateral and regional cooperation. By taking the steps recommended above, states can move closer towards achieving their anti-corruption goals and promoting a more transparent and accountable society.

Notes

• 1. Llamzon 2014.

• 2. Ranjan 2022; Yan 2022a.

• 3. This chapter adopts the M49 Standard of the United Nations to decide the scope of Asian jurisdictions. See United Nations n.d.

• 4. ICJ 2022.

• 5. ASEAN MoU 2004; G20 2021.

• 6. To supplement the Criminal Law Convention on Corruption, the Council of Europe adopted the ‘Additional Protocol to the Criminal Law Convention on Corruption’ on 15 March 2003. This Protocol entered into force on 1 February 2005 and has 46 parties as of March 2023. See Council of Europe n.d.-a.

• 7. A denunciation was made by the Russian Federation on 20 March 2023, which will become effective on 1 July 2023. See Council of Europe n.d.-b.

• 8. Wouters et al. 2013.

• 9. ICJ 2022.

• 10. Rose 2022. For instance, the final decision of the ICJ is expected to address the application of UNCAC Article 57 in practice.

• 11. It is worth mentioning that while the UNCAC emphasises the criminalisation of the solicitation or acceptance of a bribery by a foreign public official, the OECD Anti-Bribery Convention is silent on this aspect. But such absence does not mean that ‘solicitation or acceptance of a bribery by a foreign public official’ was accepted or legal in domestic laws. On the contrary, 189 state parties to the UNCAC shall establish the solicitation or acceptance of a bribery by a foreign public official as a criminal offence in accordance with Article16(2) of the UNCAC.

• 12. See such instruments as the 2021 Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions (Working Group on Bribery in International Business Transactions, adopted on 26 November 2009 and amended on 26 November 2021), 2019 Recommendation of the Council on Guidelines on Anti-Corruption and Integrity in State-Owned Enterprise, and the 2019 Recommendation of the Council on Bribery and Officially Supported Export Credits. For a full list of the OECD’s treaties, recommendations, declarations and decisions on anti-corruption and integrity, see e.g., OECD n.d.-a.

• 13. OECD n.d.-b.

• 14. OECD n.d.-c.

• 15. OECD n.d.-d.

• 16. Notably, the ADB has established the Office of Anticorruption and Integrity to mitigate the risks of corruption, conduct investigations into instances of corruption, and promote ethical behaviour among all ADB stakeholders. The Office has regularly published reports on its investigation and enforcement activities and its prevention and compliance advisory foundation, highlighting its leading role in ADB’s integrity risk management initiatives. See ADB n.d. A noteworthy point is that ADB’s Strategy 2030 mandates the adoption of anti-corruption measures across all of its projects and programmes, as well as providing support for government-led efforts to eradicate corruption. The strategy also aims to promote the provision of public services free from corruption, thus enhancing accountability for the services delivered. See ADB 2018.

• 17. OECD n.d.-e.

• 18. OECD n.d.-f.

• 19. OECD n.d.-g.

• 20. OECD n.d.-h.

• 21. UNODC n.d.-a.

• 22. Australia, China, India, Indonesia, Japan and South Korea are members of the G20. See G20 2016a.

• 23. G20 2021.

• 24. G20 2019.

• 25. G20 2017.

• 26. G20 2016b.

• 27. ASEAN 2016.

• 28. ASEAN MoU 2004.

• 29. ASEAN 2020.

• 30. ASEAN 2019.

• 31. ASEAN 2017.

• 32. ASEAN 2018.

• 33. China Daily 2019.

• 34. China Daily 2019.

• 35. It is also proposed that instead of using ‘Green Silk Road’ or ‘Clean Silk Road’, a more comprehensive notion—‘Sustainable Silk Road’—should be implemented so as to cover many social values in relation to the environment, labour, corporate social responsibility and anti-corruption. See Yan 2022b.

• 36. Tower and Staats 2020.

• 37. UNODC n.d.-b.

• 38. UNODC n.d.-c.

• 39. UNODC n.d.-d.

• 40. UNCTAD n.d.-a.

• 41. Ibid. Specifically, the mapped intra-Asian investment treaties containing anti-corruption provisions are Japan–Oman BIT (2015), Japan–Mongolia EPA (2015), Japan–Kazakhstan BIT (2014), Japan–Myanmar BIT (2013), Iraq–Japan BIT (2012), Japan–Kuwait BIT (2012), India–Japan EPA (2011), Japan–Uzbekistan BIT (2008), Japan–Lao People’s Democratic Republic BIT (2008) and Cambodia–Japan BIT (2007) (sequenced according to ‘Date of Signature’). See also Chap. 11 in this volume.

• 42. While focusing on the practices in Asian agreements, the typology established in this chapter builds on the criteria and standards clarified in Yan’s article on an empirical study of ACPs in investment agreements. See Yan 2020.

• 43. UNCTAD 2013.

• 44. OHCHR 2022.

• 45. Sornarajah 2012.

• 46. See Sect. 5.3.3 below.

• 47. Yan 2021.

• 48. Wettstein 2020.

• 49. Yan 2020; Marcoux 2019.

• 50. Ho 2019; Ranjan 2021.

• 51. IISD 2005.

• 52. Fauchald 2021.

• 53. UNCTAD 2015 (World Investment Report) explains that the ‘carve-out’ aspect is one of the important tools for IIA reforms, which aims at circumscribing (in IIA clauses or reservations) the scope of the treaty, scope of protection investments or investors, scope of application of key clauses and the scope of access to ISDS.

• 54. CETA Article 8.18, para. 3.

• 55. Indonesia–Korea CEPA (2020) Article 7.19(3)(c).

• 56. See respectively Chaps. 9, 10 and 14 in this volume.

• 57. Indian Model BIT (2015) Article 13.4.

• 58. Raju 2016.

• 59. India–Kyrgyzstan BIT (signed 14 June 2019).

• 60. Yan 2021.

• 61. See Chaps. 4 and 7 in this volume.

• 62. See Chap. 11 in this volume.

• 63. Japan–Cambodia BIT (2007) Article 10.

• 64. Llamzon 2014.

• 65. RCEP Article 17.9 para. 1.

• 66. Indonesia–Singapore BIT (2018) Article 13 para. 1.

• 67. Llamzon 2014; Yan 2021.

• 68. UNCTAD 2022.

• 69. Indonesia–Singapore BIT (2018) Article 12.

• 70. See generally Marcoux 2021 and Ishikawa 2022 (reviewed in Nottage 2023).

• 71. Shelton 2000.

• 72. Indian Model BIT (2015) Article 12 (‘Corporate Social Responsibility’).

• 73. India–Kyrgyzstan BIT (2019) Article 12.

• 74. Nigeria–Singapore BIT (2016) Article 11, para. 2.

• 75. ADB-OECD 2010, pp. 12–13.

• 76. ADB-OECD n.d.