Webcor v Gabon
Cengiz v Libya
Sorelec v Libya
Indicators of corruption
In two recent cases – Cengiz v Libya(1) and Webcor v Gabon(2) – the Paris Court of Appeal reaffirmed its previous line of decisions(3) that an award should be set aside when there are serious, specific and consistent indicators ("red flags") that it enforces a contract tainted by corruption. These two decisions were rendered shortly after the Court's decision in Sorelec v Libya,(4) where it had already considered the setting aside of an award on corruption grounds.
In each of these decisions, the Court applied what appears to be a consistent standard of review, but reached opposite conclusions: while it set aside the awards in Webcor v Gabon and Sorelec v Libya, it rejected Libya's annulment plea in Cengiz v Libya. The Court's reasoning in these cases provides useful insight on the courts' control over arbitral awards when corruption allegations are raised.
This case arose out of contracts for the construction of a market in Gabon signed between a Gabonese municipality and a Gabonese company (GML), with 60% of its shares owned by Webcor ITP Limited (Webcor), a Maltese company. Notably, GML had signed a contract granting it various tax and custom incentives for the development and exploitation of the project. Following the Gabonese authorities' decision to suspend the works and associated tax incentives, Webcor and GML started an International Chamber of Commerce (ICC) arbitration against Gabon and its municipality. Gabon sought to set aside the award rendered in this arbitration on the basis that the underlying contracts had been obtained by corruption. On 25 May 2021 the Court granted Gabon's application, finding that the award violated international public policy.
Cengiz v Libya arose out of an award rendered pursuant to a construction contract between Cengiz Libya, a company 65% owned by Cengiz, a Turkish company and the Libyan Housing and Infrastructure Board (HIB). During the Libyan revolution, the project sites of Cengiz Libya were attacked leading to an interruption of the works. On 13 June 2013, Cengiz Libya and HIB concluded two protocols to allow the works to restart. In 2015, Cengiz submitted a request for arbitration under the Turkey-Libya Bilateral Investment Treaty (BIT) to recover its losses from the damages caused during the Libyan revolution. Libya sought to set aside the award issued by the arbitral tribunal, arguing that the construction contract was tainted by corruption. On 25 May 2021, the Court rejected Libya's application, finding that it had failed to establish serious, specific and consistent indicators of corruption that would have justified setting aside the award.
The facts of Cengiz v Libya (and, as further explained below, the arguments developed by Libya in support of its annulment application) were similar to those in Sorelec v Libya, a case that was before the Court in November 2020. Sorelec v Libya involved the conclusion of a contract made in 1979 between Sorelec and the Libyan ministry of education for the construction of a school and related buildings.
Following the commencement of an arbitration under the France-Libya BIT and the ICC Rules in 2013, Sorelec and one of the rival governments formed in the aftermath of the 2011 Libyan revolution signed a settlement agreement. The arbitral tribunal certified the settlement agreement in a partial award dated 20 December 2017 and, in accordance with its terms, ordered Libya to pay €230 million to Sorelec within 45 days. When Libya failed to comply with that order, in accordance with the settlement agreement, the tribunal issued a final award ordering Libya to pay Sorelec €452 million. In November 2020, Libya successfully set aside the partial and final awards on the ground that the settlement agreement had been obtained by corruption.
In Sorelec v Libya and Webcor v Gabon, the starting point of the Court's analysis was the Convention of the Organisation for Economic Co-operation and Development and the United Nations Convention against Corruption, which aim to fight against corruption. By referring to these texts, the Court defined "corruption of a public agent" as:
the offer, directly or indirectly, of an undue advantage to that agent or to another person or entity to perform or refrain from performing an act in the exercise of his or her official duties, with a view to obtain or retain business or other improper advantage in connection with an international business activity.(5)
The Court held that the prohibition against corruption of public officials was a matter of international public policy because it was one of the principles for which the French legal system could not allow any violation, even in an international context.
In each of the cases, acting pursuant to article 1520, 5° of the Civil Procedure Code,(6) the Court considered whether recognition or enforcement of the award would violate international public policy in a clear, effective and concrete manner. To do so, the Court looked at whether there were serious, specific and consistent indicators that the relevant contract involved corruption. In Sorelec v Libya, the Court explained that reliance on a set of indicators was necessary because of the hidden nature of the acts of corruption.
In Webcor v Gabon, the Court also noted that it was not within its remit to decide whether corruption had actually taken place or to declare the individuals involved guilty of corruption under the applicable domestic law, but only to determine if the recognition or enforcement of the award would contravene the fight against corruption by financing or rewarding it. The court also reaffirmed the principle that an award could be annulled on the ground of corruption, even if it had not been raised before the arbitral tribunal.
Thus, in all three cases, the Court considered whether there were serious, specific and consistent indicators that the contract underlying the arbitral award was tainted by corruption. While in Webcor and Sorelec the Court found that there existed indicators of corruption justifying the setting aside of the award, it reached the opposite conclusion in Cengiz.
The decision in Webcor v Gabon can be distinguished on the facts of that case. Indeed, in Webcor there was evidence that a monetary advantage in the form of a wedding gift had been offered to the mayor responsible for awarding the relevant contracts shortly before their conclusion. The Court found that this was a serious indicator that the negotiations and the underlying contracts were tainted by corruption.
Conversely, in Cengiz and Sorelec there was no proof of an undue advantage being offered to an agent of the state. In both cases, Libya relied on a similar set of red flags in support of its plea for annulment, including:
- the overall climate of corruption, which was aggravated by the political context at the time of the conclusion of the contract;
- other instances of corruption that had occurred during the same period;
- the fact that parties involved in the conclusion of the contract had been previously implicated in corruption cases;
- the failure to follow procurement procedures required to sign the contract;
- the lack of evidence of negotiations in the period preceding the signature;
- the irrationality of the terms and conditions of the agreement;
- the events following the conclusion of the contract; and
- the actions undertaken by Libyan authorities in relation to the corruption allegations.
However, in reaching its decision in these cases, the Court did not afford equal weight to these factors.
For instance, while in both decisions it held that the overall climate and political context could not, in and of themselves, constitute sufficient indicators of corruption, the Court in Sorelec accepted that it was at least relevant to its determination. Further, in Cengiz, the Court took into account the fact that Libya had not pursued any actions against state agents allegedly involved in the corruption. But in Sorelec, the Court found that the absence of criminal proceedings in Libya was irrelevant to its determination. In contrast, in Cengiz, the Court refused to consider the violation of Libyan procurement law as being relevant to its analysis, whereas in Sorelec, the Court expressly considered the state agent's failure to comply with a mandatory notification under the applicable procurement procedures.
While the Court's decision in these two cases may seem inconsistent, the difference in approach can likely be explained by the fact that there were additional factors in Sorelec that were absent in Cengiz. The factors in Cengiz were not sufficient to justify setting aside the award, but these same factors, when taken as a whole and corroborated by additional indicators in Sorelec, supported the Court's conclusion that the underlying contract had been obtained through corruption. In particular, in Cengiz, the Court reproached Libya for only advancing general corruption allegations without having identified the alleged act of corruption or the state entity allegedly involved.
In these recent decisions, the Court reaffirmed its role in the fight against corruption by scrutinising awards allegedly enforcing contracts tainted by corruption, even when such allegations were not raised during the arbitration. Recognising the hidden nature of acts of corruption, in Sorelec the Court extended its control to contracts in relation to which serious, specific and consistent indicators of corruption existed even when no evidence of an undue advantage granted to a state agent had been presented.
The recent decisions of Cengiz and Webcor show that the assessment of these issues will turn on the specific facts of each case. While general allegations of corruption are unlikely to justify the setting aside of an award, evidence of a bribe will have strong probative value.
For further information on this topic please contact Camille Strosser at Freshfields Bruckhaus Deringer by telephone (+33 1 44 56 44 56) or email ([email protected]). The Freshfields Bruckhaus Deringer LLP website can be accessed at www.freshfields.com.
(1) Paris Court of Appeal 18/27648, decision of 25 May 2021.
(2) Paris Court of Appeal 18/18708, decision of 25 May 2021.
(3) See Paris Court of Appeal 16/11182, decision of 28 May 2019.
(4) Paris Court of Appeal 18/02568, decision of 17 November 2020.
(5) See Paris Court of Appeal 18/18708, decision of 25 May 2021, paragraph 49:
[l]a corruption d'agent public, qu'il soit national ou étranger, consiste à offrir à celui-ci, directement ou indirectement, un avantage indu, pour lui-même ou pour une autre personne ou entité, afin qu'il accomplisse ou s'abstienne d'accomplir un acte dans l'exercice de ses fonctions officielles, en vue d'obtenir ou de conserver un marché ou un autre avantage indu, en liaison avec des activités de commerce international.
(6) Article 1520, 5° of the Civil Procedure Code provides that "an action for annulment is only available if: . . . 5° The recognition or enforcement of the award is contrary to international public policy".