A Comment on the Clean Hands Doctrine in International Law

Abstract

Equitable principles are a part of international law. The International Court of Justice has confirmed that “the legal concept of equity is a general principle directly applicable as law.” Among those equitable principles that international tribunals have applied is the concept that a claimant's claims may be barred due to its illegal conduct in relation to the claims he brings. This concept is known as the “clean hands doctrine."

There is some debate about the scope of application of the clean hands doctrine in international law, and in what context it should apply. For example the International Law Commission decided that the clean hands doctrine should not apply in the diplomatic protection context.

Though the use of the clean hands doctrine in international law has been debated, many notable developments have recently been made in relation to the application of the doctrine. In particular, the principle behind the clean hands doctrine is manifest in provisions contained in various modern bilateral investment treaties and discussed by the tribunals that interpret them. This article will briefly summarize the evolution of the clean hands doctrine before explaining how the doctrine has been further entrenched in international law through recent developments in the investment treaty context.

Keywords: clean hands, equitable defences in international law, international investment law, bilateral investment treaties, BITs, international arbitration

JEL Classification: K33, K40, K42