In a panel discussion hosted by 39 Essex Chambers and Field Fisher titled “Corruption without frontiers: Navigating Civil Claims, Criminal Liability, Trust and Accountability and The impact of ECCTA in International Arbitration”, legal professionals came together to explore how Economic Crime and Corporate Transparency Act, 2023 (ECCTA), reshapes corporate exposure and how England’s courts and institutions provide principled, predictable responses to cross-border corruption.
The session comprised of esteemed speakers namely, Mr. Jonathan Bellamy, Barrister, 39 Essex Chambers; Ms. Rebecca Drake, Barrister, Adjudicator and Mediator, 39 Essex Chambers; Mr. Sam Stein KC, Barrister, 39 Essex Chambers; Ms. Karishma Vora, Barrister and Arbitrator, 39 Essex Chambers; Mr. Joe Han Ho, Commercial Barrister, 39 Essex Chambers; and Ms. Natalie Quinlivan, Dual-qualified Litigator, Field Fisher.
Solicitor Perspective on Managing Arbitration and Criminal Risk: Ms. Natalie Quinlivan
Ms. Natalie Quinlivan began the session by talking about ECCTA in the context of arbitration. She stated that clients did not view these cases as arbitral proceedings with a criminal issue in the background, but rather as a single cross-border crisis with multiple legal processes occurring simultaneously at different speeds.
Alongside arbitration proceedings, often complex privilege questions come up due to an internal investigation into a criminal issue, and regulators or enforcement agencies also get involved. There are also instances of potential prison exposure for individuals. She remarked that these processes can overlap and conflict, creating strategic tension. Thus, the clients need a coherent strategy that can work across all those fronts instead of disconnected legal responses from their solicitors.
She emphasised that a solicitor’s role is one of coordination, i.e., managing the interaction between several processes, and a lack of coordination could result in immediate and significant risks, such as:
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Inconsistent narratives across proceedings
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Creation of damaging documents that are later subject to disclosure
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Tactical decisions in one forum cause avoidable prejudice in another
Ms. Quinlivan highlighted some pressure points from the solicitor’s perspective:
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Information Asymmetry: One party may know much more about either the underlying conduct or emerging enforcement interests.
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Privilege vs. Disclosure: In cross-border cases where criminal issues arise, internal investigations can then generate some of the hardest legal disputes around disclosure.
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Consistency: An attorney on board must align and give the same narrative and information to the tribunal, the regulator, or to an enforcement agency, because sophisticated counterparties and agencies will be comparing narratives along with documents.
She underscored the shift in corporate criminal exposure, particularly under ECCTA, and remarked, “What may begin as a commercial dispute can now engage corporate liability frameworks at a very early stage, including failure to prevent offences.” Thus, the question was not where arbitration lies in such cases but rather whether there was a UK jurisdictional hook and whether it could trigger organizational liability as a result.
Regarding UK laws, she elaborated on how the UK Bribery Act, 2010, and ECCTA had extraterritorial reach, particularly through failure to prevent offences provisions. In broad terms, a company carrying out one business in the UK can face liability for conduct anywhere in the world, even if the conduct is carried out by subsidiaries, employees, or third parties overseas. Thus, a dispute that may look offshore in commercial terms, due to a non-UK contract or non-UK parties, can still create an onshore risk from an enforcement perspective.
She explained that this meant that internal workstreams must be planned on the assumption that UK scrutiny will follow, which would affect the solicitor’s approach towards internal investigations. Internal investigations were no longer limited to a fact-finding exercise, but also extended to gathering evidence, shaping narratives, and active criminal risk management. Thus, solicitors must, from the beginning, assess how facts could be characterized when looked through a criminal lens and take steps that will definitely shape enforcement later.
Accordingly, Ms. Quinlivan set out some practical recommendations:
Do:
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Establish a single control team with a clear decision-making structure early on.
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Align arbitration and investigation strategies from day one and sequence actions carefully.
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Anticipate regulator and enforcement expectations, including potential reporting obligations.
Don’t:
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Run parallel inquiries that jeopardise privilege or create unnecessary discoverable material.
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Allow communications to get ahead of evidence or diverge across forums.
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Underestimate criminal exposure when disclosing witness decisions, disclosure choices, and dynamics around government.
As an example, she cited the UK Serious Fraud Office’s powers under Section 2 of the Criminal Justice Act 1987, which allows the SFO to compel individuals and companies to produce documents, provide information, or attend an interview. Non-compliance was backed by criminal sanctions, and the provision could be invoked at an early stage, even before a formal investigation begins. These powers introduce an element absent from arbitration, i.e., compulsion, which can disrupt carefully managed arbitration strategies.
Thus, Ms. Quinlivan concluded by underscoring that in parallel proceedings, the real advantage lay in practicing control, sequencing, and consistency from the start, not in hindsight. The solicitor’s role is to manage the interaction between arbitration and criminal processes so that they operate as part of one coherent strategy.
Can the red flags be raised? Tribunal’s Power to Investigate Corruption Concerns under UK Law: Mr. Joe Han Ho
Mr. Joe Han Ho began by outlining that the scope of his insights would be limited to the arbitral tribunal’s duties when corruption-related red flags appear. In this regard, he spoke about three things:
1. Arbitration Act, 1996: At the outset, he mentioned that Section 33 of the English Arbitration Act 1996 requires tribunals to act fairly and impartially, adopt appropriate procedures, etc. However, there was no mention of corruption red flags.
2. Arbitration Act, 2025: He stated that the lack of any such directive in the 1996 Act led to lobbying attempts during the drafting process of the 2025 Amendments. A charity named ‘Spotlight on Corruption’ submitted a detailed response in the call for evidence, making proposals on how to change the law.
This led to a conversation between the drafting committee and the charity, wherein there was a reference to a London Court of International Arbitration’s award, wherein the tribunal stated that it was not the task of arbitral tribunals to be engaged in fights against corruption, but also not to accept bribery as a fact of life in some countries and keep its eyes shut when faced with allegations of corruption. The tribunal considered that a middle course can be found in view of the limited evidentiary and coercive powers in private commercial arbitration, and the uphill task of establishing corruption, which by its very nature is secretive and hidden. It proceeded to make some findings of bribery, but also made very clear that while there may have been bribery up and down the chain of the people who were found to have been involved in it, it did not make any findings against them. The tribunal concluded by holding that it did not make findings in relation to corruption, as this was not possible or necessary for the disposition of the case.
Mr. Ho emphasized that the aforementioned statement on the middle ground summarizes how many tribunals approach the issue. The practical reason for tribunal inaction was the limited scope of their powers, party autonomy, the limited scope of proceedings, etc.
He noted that the charity further proposed three things to form part of an arbitral tribunal’s role under Section 33:
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A duty to raise corruption concerns with parties and engage in a red-flag analysis where the issue had a bearing on the dispute’s resolution.
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A duty to publish rulings where they cannot render an enforceable award due to corruption concerns.
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A power to report suspected corruption to authorities with immunity from any liability for breaching confidentiality.
He also mentioned that Lord Hacking also proposed amending Section 33 to include a duty to safeguard the arbitration proceedings against fraud and corruption. However, none of the proposals came to fruition as Section 33 remained unamended, as the government received that express powers or duties regarding corruption should not be included.
Mr. Ho explained that the government consulted leading arbitration bodies, including ICC, LMAA, LCIA, CIArb, GAFTA, etc., who unanimously favoured maintaining the existing framework, stating that there were sufficient mitigations. The arbitration institutions claimed that they had:
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Ethics, experience, and professional conduct requirements for members,
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Rules and procedures for duties of fairness and impartiality,
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Training and guidelines to support responding to allegations of corruption,
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Mitigation measures against corruption, including through red flag analysis and compliance with existing requirements under domestic legislation.
The Government claimed that concerns were raised regarding the option for a one-size-fits-all approach, which could risk England’s appeal as a seat for arbitration. However, they expressed support for the International Chamber of Commerce’s (ICC) Anti-Corruption Task Force, which is exploring approaches to allegations of signs of corruption and disputes. Thus, he stated that this was why the government believed that it was better to let the industry self-regulate and retain the attractiveness of England as a seat.
3. Present Scenario: Mr. Ho remarked that while nothing had changed in terms of the statute, all tribunals, whether traditional common law backgrounds or interventionist civil law backgrounds, were increasingly expected to conduct red-flag analysis, ask probing questions, exercise curiosity, and use available procedural tools. Furthermore, he noted that arbitration institutions were spearheading this soft-law guidance, training, and literature creation.
“I think the industry has given quite a clear sign that it will self-regulate and do so effectively. And it was very much the bargain made to not change the statutory duty.”
He also suggested cases such as the Nigeria v. P&ID1 dispute might have prompted significant reflection within the arbitration community regarding legitimacy and oversight. He added that the ICC Red Flags Document, published by the ICC Anti-Corruption Task Force, was instructive of this soul-searching approach.
In conclusion, he remarked that the tide was changing and with increased soft-law obligations for tribunals, many practical implications would arise for all stakeholders. Such implications could include cost changes, timeline extensions, enquiries for disclosures, dealing with tactical allegations, choice of party-nominated arbitrator, change in scope of litigation, taking proactive measures for mitigants, and settlement changes.
“If the price to pay for not having an express duty is more of a self-regulation, then the risk of corruption allegations being more proactively examined and pursued, increasing cost and time, might stir parties to think harder about what sort of terms of settlement they’re willing to accept.”
Illegality in Contract Performance — English and International Perspectives: Ms. Karishma Vora
At the outset, Ms. Vora posed a hypothetical scenario for the audience to consider. In this scenario, a claimant appears before the tribunal with a brief four-page contract claiming that goods worth $350 million were previously supplied. The respondent does not appear before the tribunal. Would the tribunal accept the one-sided payment obligations, or would it probe and question further?
She answered that in the present scenario, as explained by Mr. Ho, a modern tribunal would not simply enforce the contract but would seek evidence of actual performance. She explained that traditionally, the tribunal would have said that anything concerning fraud required a sanction from a court, as they lacked the powers for the same. Thus, the tribunal would not arbitrate. However, today, a tribunal would take the initiative to probe and take an investigative approach. Illustrating the Nigeria v. P&ID case, she stated that the said case was an example of illegality in proceedings wherein very important documents that would have unearthed bribery and corruption were suppressed.
Thereafter, she shifted her focus to explaining performance and illegality in performing a contract:
1. English Law Aspect: Ms. Vora stated that the approach towards such cases changed dramatically after the landmark Supreme Court decision Patel v. Mirza2. In this case, Mr. Patel gave £620,000 to buy shares for himself, after Mr. Mirza received insider trading information.
Any trade pursuant to insider trading information is illegal, and Mr. Mirza did not receive insider trading information. Thus, he did not buy the shares or return the money. Mr. Patel filed a case, and the Supreme Court allowed recovery of the money. The Supreme Court applied a three-prong test in this decision:
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Would denying recovery enhance the illegality? Would the public be encouraged to commit insider trading?
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Public policy considerations, i.e., would the public’s faith in the integrity of stock markets be undermined?
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What was the proportionality between illegality and the claim?
This case, she remarked, was cited in another case titled Stoffel & Co v. Grondona,3 where a solicitor’s negligence claim succeeded despite an underlying mortgage fraud. The Supreme Court held that professional negligence could still be addressed despite surrounding illegality.
2. Foreign Law Aspect: Ms. Vora began by citing the case of Ralli Bros v Cia Naviera Sota y Aznar3, wherein a landmark English principle was established: English courts will not enforce contracts that are illegal at the place of performance.
She stated that this principle has had mixed application by the English Courts. The recent approach was underlined in Manteev v Seskov, wherein an investment agreement was at the core of the transaction, and there was visa fraud in the UAE as well. The Court upheld the investment agreement on the grounds that the fraud was peripheral to the transaction. Thus, that illegality is not something that would vitiate the other contract, which was the investment agreement. Ms. Vora explained that the Court followed the Hong Kong Judgment of Ryder Industries Ltd v. Chan Shui Woo4
Thus, she concluded that the changing nature of English Courts and the development of Common Law was visible, wherein the Courts will take, on a case-by-case basis, a balanced view of whether it should uphold any illegality within the performance of the contract.
Accordingly, the panel discussion concluded with Mr. Sam Stein’s closing remarks.
This report forms part of SCC Times’ special coverage of London International Disputes Week (LIDW) 2026. As a Media Partner for the event, SCC Times is reporting key conversations across the conference, highlighting emerging trends and perspectives from the international dispute resolution community.
SCC Times extends its appreciation to Zehra Naqvi, EBC—SCC Online Foreign Student Ambassador and Lawyer, for her on ground presence, valuable assistance and contribution to the reporting of this event.
Read more LIDW 2026 Coverage:
1. UKSC/2024/0117
2. UKSC/2014/0218
3. UKSC/2018/0187
4. (2015) 18 HKCFAR 544
