Contracts Tainted by Corruption: Does Dutch Civil Law Augment the Criminalization of Corruption?

Abstract

This paper assesses the extent to which solutions under Dutch civil law complement and augment the public policy objectives underlying the criminalization of corruption in international business transactions. To this end, it explores the contractual and non-contractual consequences of contracts tainted by corruption as well as the rules of private international law that come into play with regard to such ‘corrupt’ contracts under Dutch law.

The paper shows that contractual consequences as well as the evidential burden with respect to contracts that are the ultimate result of ‘successful’ acts of bribery, are gravely inconsistent with the public policy underlying criminalization. In addition, it explains that the traditional value-neutral approach of Dutch conflict of laws not only reduces the opportunity for courts to consider the ‘better law’ in cases concerning corrupt contracts but also does not preclude forum shopping for a more amendable system by corrupt actors. The implications of the interrelationship between Dutch substantive law and Dutch private international law means that correction mechanisms as do exist under the Dutch conflict rules, are strongly interwoven with Dutch substantive civil law. Therefore, for as long as Dutch substantive law falls short, Dutch private international law is also limited as a tool in fighting corruption.

This paper emphasizes that Dutch Civil Law cannot remain isolated from the public policy underlying the criminalisation of corruption. The objective of bribery is, after all, the acquisition of an agreement or contract, in a manner that ultimately undermines the market as well as political and social institutions. By highlighting key areas where developments in Dutch private law and private international law are critically needed, this paper contributes to the growing discussion about the role of private law in the fight against corruption from the perspective of Dutch Law.

Keywords: Corruption, Contracts tainted by Corruption, Dutch Law , Civil law consequences, Private International Law