Duty Free rests upon a kind of three-legged stool of legal argumentation. Those legs are: 1) the common law of contract; 2) principles of state liability for official misconduct; and 3) global anti-corruption policy. As this article will show, each leg of that stool is fundamentally flawed; the legal arguments are unpersuasive and occasionally incorrect. This article seeks to deconstruct that stool, exposing the fatal structural flaws in each leg. It thus clears the way for building an arbitral jurisprudence of corruption that actually does what Duty Free attempted: advance global anti-corruption policy in a way that will inure to the true victims of corruption, who are the citizens of the world's developing countries.
Andrew B. Spalding, Deconstructing Duty Free: Investor-State Arbitration as Private Anti-Bribery Enforcement, 49 U.C.Davis L. Rev. 443 (2015).