Success in registration of Swiss Arbitral Award
Charles Fussell & Co LLP, together with Christopher Harris QC and Sarah Tulip of 3 Verulam Buildings, were instructed on behalf of a Hong Kong company ("A") to enforce a Swiss Arbitral Award in England against a French and an English Respondent ("B"). In brief summary, A issued arbitral proceedings in Switzerland in 2014, seeking payment of unpaid invoices pursuant to a series of contracts between itself on the one hand and B on the other. It was (mainly) successful and, on 29 January 2016 the ICC issued a final arbitral award ordering the Defendants to pay the sums of €932,800 and €624,000, together with interest (the “Award”).
The unpaid invoices were in respect of services carried out by A in liaising with and negotiating with the Chinese Government on B’s behalf in respect of tenders for work on the Chinese railways. These tenders had been successful and B had obtained more than $1 billion of work through A’s efforts. B was subject to an investigation by the US Department of Justice and the Serious Fraud Office from 2009 onwards in respect of corruption and bribery in respect of its dealings in Turkey, Tunisia, Poland, India and Lithuania. As part of its investigation, the SFO also audited B’s relationship with the Chinese government and A. However, it found no wrongdoing and did not include China or A in its prosecution of B. A has never otherwise been implicated in or indicted for any offence at all. B, on the other hand, entered into agreements with the Department of Justice in the US, and in England was found guilty of the various counts of bribery and corruption in relation to Turkey, Tunisia, Poland, India and Lithuania.
B resisted the Award, appealing first to the Court of the Seat. The Swiss court upheld the Award, but B still refused to pay. Accordingly, A issued enforcement proceedings in France. Once again B resisted the Award and, although A initially succeeded in obtaining an order for the Award to be enforced, this was reversed in the French Court of Appeal. A appealed to the French Supreme Court, and proceedings there are still ongoing.
In the meantime A also sought to enforce the Award in England and was successful in registering it in November 2019. However, B challenged the registration and the matter was heard over a two-day hearing before Mrs Justice Cockerill in May 2020. Throughout its appeals in the various countries, B sought to argue that the Award should not be upheld as a matter of public policy. In particular, it argued throughout (from the original arbitration onwards) that A was guilty of bribery and corruption. B’s argument was that whilst it had no evidence of the same, it nonetheless believed that it might have bribed the Chinese Government in order to secure the relevant contracts for B. B argued that in light of these suspicions, it would be contrary to public policy to pay any monies to A. In the English proceedings, it went further and suggested that if the English courts upheld the Award, then the French arm of B and its employees might be liable for bribery and corruption offences under French criminal law. In her 56-page judgment, Mrs Justice Cockerill found that “there was really very little indeed … which looks to be of any concern … if the case had been argued on the merits, with the question being about whether this evidence disclosed a real (as opposed to fanciful) prospect of success … my provisional view is that I would have hesitated to conclude that it met even that not-very-high hurdle. It is not, as was submitted, a strong prima facie case of bribery …”.
Accordingly, B’s application to challenge the registration of the Award was dismissed in full.
The matter will now proceed to enforcement.