1) The report into the First Audit identified "several accounting errors and internal control weaknesses", including that the "level of documentation is not deemed appropriate;" it also stated that "no unusual significant transactions were identified and the main cash transactions were reconciled";
2) The report from the Second Audit was not disclosed by Alstom in the arbitration or in these proceedings. Nor, in either proceedings, did it present evidence from any of those who were involved in the audit. It is to be inferred (as the Tribunal did) that the audit report from the Second Audit contained nothing which would assist Alstom's case that there was bribery.
"i. Can the fact that Respondents are subject to an investigation by the UK Serious Fraud Office influence their payment obligations towards Claimant and, if so, in which way? Is it necessary that payments under the Consultancy Agreements are officially cleared by the Serious Fraud Office? Is Claimant's alleged failure to provide a satisfactory level of information to Respondents in connection with the criminal investigation, and its alleged refusal of a complementary audit, of relevance to Respondents' payment obligations and, if so, in which way?
ii. Is Respondents' internal compliance policy in relation to anti-bribery standards of relevance to Respondents' payment obligation under the Consultancy Agreements, and, if so, in which way, i.e. are Respondents allowed to withhold payment of the amounts claimed by Claimant?
iii. Are Respondents under an obligation to pay the outstanding invoices under the Consultancy Agreements in case Claimant is not able to provide proof of the content of its service? Can the - alleged - nonfulfillment of this obligation be a valid reason for not paying the invoices?
iv. Are Respondents under an obligation to pay these invoices if there is evidence of or arguments for corruption?
v. What are the costs of the arbitration and how should they be borne by the Parties?"
1) ABL filed its First Memorandum on 31 July 2014;
2) Alstom filed its First Memorandum on 10 October 2014;
3) ABL filed its Second Memorandum on 8 December 2014;
4) Alstom filed its Second Memorandum on 3 February 2015;
5) The hearing took place in Paris on 23-24 March 2015;
6) ABL submitted its post hearing brief on 25 June 2015;
7) Alstom submitted its post hearing brief on the same date.
1) ABL was an offshore shell company which, during the relevant period, received very substantial sums from Alstom only, pursuant to the Agreements.
2) The sole individual who provided the services for ABL was Ms Guo Qi.
3) The services ABL claims to have provided appear to have no real substance, particularly when compared to the contractual obligations as to services in the Agreements and the large size of the sums which ABL claims to be entitled to.
4) ABL spent very significant amounts on entertainment and other expenses for which there is no transparency as to what was spent on whom and why.
5) ABL's accounts show that it paid €280,000 to SITICO, pursuant to the undisclosed SITICO contract, which was entered into just before Consultancy Agreement No. 1.
6) Ms Guo Qi at first denied that the SITICO contract was related to Alstom, but then reversed her position, confirming that it was in fact related.
7) Although on the face of the SITICO contract, the services purportedly provided by SITICO to ABL relate to a previous consultancy agreement, and not any of the Agreements, it was unclear what (if anything) SITICO did for the €280,000 it received from ABL and whether SITICO or individuals connected to it received further financial benefits from ABL in connection with Alstom, for example, through the very significant but opaque expenses recorded in ABL's accounts.
8) A SITICO manager, who was employed at the relevant time, was convicted in 2016 of bribery and corruption offences.
9) ABL obtained sensitive and confidential documents and information from officials connected to the Chinese Ministry of Railways and has repeatedly declined to provide any cogent explanation as to how it came to obtain them.
10) Two very senior officials with whom Ms Guo Qi dealt were later convicted of crimes relating to bribery and corruption in relation to the award of railways contracts in the relevant period.
11) By its own admission, ABL was able to influence the award of Chinese government contracts to the benefit of Alstom.
1) "So the real issue at stake, the one that the Arbitral Tribunal has to rule in this case is to know whether Claimant has performed its contractual obligations, and I insist on that."
2) "this Arbitral Tribunal knows how difficult it is to have material proof of acts of corruption. Respondents here have been clear in the memorandums; we're not saying that we have in this case the evidence of payments, of bribes to public officials".
"the Arbitral Tribunal, after having analysed the elements of proof that the appellants had provided to it in order to support their implicit allegation of corruption aimed at the respondent, considered that this allegation had not been proved… Such a conclusion arises from an assessment of the evidence that this Court cannot re-examine."
"103 Refusal of recognition or enforcement
(1) Recognition or enforcement of a New York Convention award shall not be refused except in the following cases.…
(3) Recognition or enforcement of the award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to public policy to recognise or enforce the award."
1) There is a strong prima facie case (definitions differ but generally suggest that it must be at least of sufficient cogency and weight to be likely to have materially influenced the arbitrators' conclusion had it been advanced at the hearing; and where perjury is alleged the evidence must be such that it would have been expected to be decisive);
2) The evidence was not available or reasonably obtainable, either:
i. at the time of the hearing of the arbitration; or
ii. at such time as would have enabled the party concerned to have adduced it in the court of supervisory jurisdiction to support an application to reverse the tribunal's award if such procedure were available.
"… the court has to perform a balancing exercise between the finality that should prima facie exist particularly for those that agree to have their disputes arbitrated, against the policy of ensuring that the enforcement power of the English court is not abused: the nature of, and strength of the case for, the illegality, and the extent to which it can be seen that the asserted illegality was addressed by the arbitral tribunal are factors in the balancing exercise between the competing public policies of finality and illegality. [Footnoted to Westacre at p 314, R v V  EWHC 1531, Soleimany at p 800"].
1) The contract was contrary to Kuwaiti public policy but would not have been contrary to Swiss public policy "so there was no point arguing the matter before the arbitrators, before whom nothing short of corruption would be a defence";
2) In the light of the position in Kuwait, enforcement would be contrary to English public policy and enforcement should be refused.
"(v) If the court concluded that the arbitration agreement conferred jurisdiction to determine whether the underlying contract was illegal and by the award the arbitrators determined that it was not illegal, prima facie the court would enforce the resulting award. (vi) If the party against whom the award was made then sought to challenge enforcement of the award on the grounds that, on the basis of facts not placed before the arbitrators, the contract was indeed illegal, the enforcement court would have to consider whether the public policy against the enforcement of illegal contracts outweighed the countervailing public policy in support of the finality of awards in general and of awards in respect of the same issue in particular."
"I have no doubt that an English Court would give predominant weight to the public policy of sustaining the parties' agreement to submit the particular issue of illegality and initial invalidity to ICC arbitration rather than to the public policy of sustaining the non-enforcement of contracts illegal at common law. The importance of the former consideration would be held to outweigh the need to protect against the risk that arbitrators might by uncorrectable errors of fact enforce an illegal contract."
"In substance they seek to use the public policy doctrine to conduct a re-trial on the basis of additional evidence of illegality when it was open to them to adduce that evidence before the arbitrators. Such an exercise would appear to be clearly in conflict with the principles of issue estoppel."
"On balance I have come to the conclusion that the public policy of sustaining international arbitration awards on the facts of this case outweighs the public policy in discouraging international commercial corruption … That conclusion is not to be read as in any sense indicating that the Commercial Court is prepared to turn a blind eye to corruption in international trade, but rather as an expression of confidence that if the issue of illegality by reason of corruption is referred to high calibre ICC arbitrators and duly determined by them, it is entirely inappropriate in the context of the New York Convention that the enforcement court should be invited to retry that very issue in the context of a public policy submission."
"it is in our view inconceivable that an English court would enforce an award made on a joint venture agreement between bank robbers, any more than it would enforce an agreement between highwaymen, …. Where public policy is involved, the interposition of an arbitration award does not isolate the successful party's claim from the illegality which gave rise to it."
"The difficulty arises when arbitrators have entered upon the topic of illegality, and have held that there was none. Or perhaps they have made a non-speaking award, and have not been asked to give reasons. In such a case there is a tension between the public interest that the awards of arbitrators should be respected, so that there be an end to lawsuits, and the public interest that illegal contracts should not be enforced. We do not propound a definitive solution to this problem, for it does not arise in the present case …
In our view an enforcement judge, if there is prima facie evidence from one side that the award is based on an illegal contract, should inquire further to some extent … Has the arbitrator expressly found that the underlying contract was not illegal? Or is it a fair inference that he did reach that conclusion? Is there anything to suggest that the arbitrator was incompetent to conduct such an inquiry? May there have been collusion or bad faith, so as to procure an award despite illegality?...
Colman J. holds that prima facie the court would enforce the resulting award; and with that too we agree. But, in an appropriate case [the Court] may inquire, as we hold, into an issue of illegality even if an arbitrator had jurisdiction and has found there was no illegality. We thus differ from Colman J., who limited his sixth proposition to cases where there were relevant facts not put before the arbitrator".
"The English court takes cognisance of the fact that the underlying contract, on the facts as they appear from the award and its reasons, does not infringe one of those rules of public policy where the English court would not enforce it whatever its proper law or place of performance. It is entitled to take the view that such domestic public policy considerations as there may be, have been considered by the arbitral tribunal. It is legitimate to conclude that there is nothing which offends English public policy if an arbitral tribunal enforces a contract which does not offend the domestic public policy under either the proper law of the contract or its curial law, even if English domestic public policy might have taken a different view."
"I would … agree with the judge that normally the conditions to be fulfilled will be (a) that the evidence to establish the fraud was not available to the party alleging the fraud at the time of the hearing before the arbitrators; and (b) where perjury is the fraud alleged, i.e., where the very issue before the arbitrators was whether the witness or witnesses were lying, the evidence must be so strong that it would reasonably be expected to be decisive at a hearing, and if unanswered must have that result."
" although normally at the enforcement stage a party who brings an action on the award will be estopped from attempting to re-argue the points on which he has lost the arbitration … there are exceptional circumstances where the court will not allow reliance on an estoppel….
…there will be circumstances in which, despite the prima facie position of an award preventing a party reopening matters either decided by the arbitrators or which the party had every opportunity of raising before the arbitrators, the English court will allow a re-opening. The court is in this instance performing a balancing exercise between the competing public policies of finality and illegality; between the finality that should prima facie exist particularly for those that agree to have their disputes arbitrated, against the policy of ensuring that the executive power of the English court is not abused. It is for those reasons that the nature of the illegality is a factor, the strength of case that there was illegality also is a factor, and the extent to which it can be seen that the asserted illegality was addressed by the arbitral tribunal is a factor."
"I have reached a different conclusion to that of the judge. I disagree with him as to the appropriate level of opprobrium at which to place commercial corruption. It seems to me that the principle against enforcing a corrupt bargain of the nature of this agreement, if the facts in M.M.'s affidavit are correct, is within that bracket recognised … as being based on public policy of the greatest importance and almost certainly recognised in most jurisdictions throughout the world. I believe it important that the English court is not seen to be turning a blind eye to corruption on this scale. I believe that if unanswered the case at present made on M.M.'s affidavit would be conclusive against Westacre being entitled to enforce the agreement and thus the award as a matter of English public policy. I also believe that the judge did not sufficiently consider the extent to which the case now presented on bribery was examined by the arbitration tribunal. When one examines the circumstances of this case one can see that in truth the bribery issue has not been ventilated properly before the Swiss arbitral tribunal."
"It is of crucial importance to evaluate both the majority decision in the arbitration and the ruling of the Swiss Federal Tribunal, Swiss Law being both the proper law of the contract and the curial law of the arbitration and Switzerland, like the United Kingdom, being a party to the New York Convention. From the award itself it is clear that bribery was a central issue. The allegation was made, entertained and rejected… Authority apart in those circumstances I would have thought that there could be no justification for refusing to enforce the award..
… in Soleimany v. Soleimany  Q.B. 785, 800, it seems to have been suggested that some kind of preliminary inquiry short of a full scale trial should be embarked upon whenever 'there is prima facie evidence from one side that the award is based on an illegal contract...'. For my part I have some difficulty with the concept and even greater concerns about its application in practice, but,.., it seems to me that any such preliminary inquiry in the circumstances of the present case must inevitably lead to the same conclusion, namely, that the attempt to reopen the facts should be rebuffed. I so conclude by reference to the criteria given by way of example in Soleimany v. Soleimany itself. First, there was evidence before the tribunal that this was a straightforward, commercial contract. Secondly, the arbitrators specifically found that the underlying contract was not illegal. Thirdly, there is nothing to suggest incompetence on the part of the arbitrators. Finally, there is no reason to suspect collusion or bad faith in the obtaining of the award."
"The difficulty with the concept of some form of preliminary inquiry is of course assessing how far that inquiry has to go. That must be all the more so where R does not seek to deploy any new evidence (let alone evidence not available at the time of the original reference). Even assuming it is appropriate in the present application to conduct some form of assessment …."
He then nonetheless went on to assess the question by reference to the Soleimany criteria, arriving at the conclusion that a reopening should not be allowed.
"(2) Where the arbitration tribunal has jurisdiction to determine the relevant issue of illegality and has determined that there was no illegality on the facts the English court should not allow the facts to be re-opened, save possibly in exceptional circumstances. In this connection, I consider that the views expressed on this issue by the majority of the court in Westacre are to be preferred to those put forward by Waller LJ in the same case and in Soleimany ….
As Mustill & Boyd comment … 'the opinion of the majority accords best with the principles of international arbitration and the great importance to international commerce of trusting foreign arbitrators and the courts of the forum, even in cases where the judge called on to enforce the award has grounds for concern'…
(3) Where, on the facts found, there is no illegality under the governing law but there is illegality under English law, public policy will only be engaged where the illegality reflects considerations of international public policy rather than purely domestic public policy….
4) In considering whether and, if so, to what extent public policy is engaged the degree of connection between the claim sought to be enforced and the relevant illegality will be important."
1) The authorities demonstrate that where the arbitration tribunal has jurisdiction to determine the relevant issue of illegality and has determined that there was no illegality on the facts, there is very nearly no scope for this Court to re-open the issue of illegality. The general rule is that the Court will not do so; though it remains conceptually possible that it might be done in exceptional circumstances.
2) That result is probably best regarded as a position reached as a result of performing an overall balancing exercise between public policy in favour of finality and public policy against illegality; but it will in general preclude the need for the Court to perform a detailed balancing exercise in an individual case falling within this category.
3) To that extent the summary in Dicey at paragraph 16-150 (which pre-dates RBRG, and which is also summarising across the entire range of cases) is in broad terms accurate, but is less clear than it might be.
4) The basis for the court's approach of nearly always refusing to revisit an issue decided by the foreign tribunal is primarily grounded in the very great importance given to respecting the decision of international arbitration tribunals and foreign courts (taken together with the public policy in favour of finality). There are also however, as Steel J noted, practical issues with delimiting when an inquiry should be made, if the Soleimany approach were taken.
"Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue."
"The authorities show that in order to establish an issue estoppel four conditions must be satisfied, namely (1) that the judgment must be given by a foreign Court of competent jurisdiction; (2) that the judgment must be final and conclusive and on the merits; (3) that there must be identity of parties; and (4) that there must be identity of subject matter, which means that the issue decided by the foreign court must be the same as that arising in the English proceedings …"
"A negative finding in the foreign court, such as a failure to establish something on the balance of probabilities, may not be as readily determined to create res judicata or an issue estoppel as a positive finding (Moss v Anglo-Egyptian Navigation Company (1865–66) LR 1 Ch App 108, Blair v Curran (1939) 62 CLR 464, The Popi M  1 WLR 948 and Kuligowski v Metrobus  220 CLR 363)."
"Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: …. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty,... It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. …."
"Given the limited grounds upon which the court may refuse to enforce a New York Convention award then, in applying the principles relevant to summary judgment and striking out, the court needs to assess what is put before it with a critical eye. In particular where a party has not raised a matter which they could have raised before the arbitral tribunal or where they have taken inconsistent positions to those they now urge upon the court, the court should not lightly accede to a submission that the matter needs to be determined at a trial where the underlying reason is often to cause further delay and costs in the hope that something may turn up either to strengthen an existing ground or to establish a new ground."
"In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion, but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed."
"Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised."
1) There is a strong English public policy against corruption and bribery, which has strengthened considerably in recent years and is embodied in part in the Bribery Act 2010.
2) The United Kingdom being party to the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions and the United Nations Convention against Corruption.
3) The Bribery Act 2010, which came into force on 1 July 2011, was the product of a considered reform process arising out of an international consensus against bribery, which developed in earnest in the 1990s.
4) The Bribery Act makes it an offence to bribe foreign public officials (section 6) and by section 7 imposes on commercial organisations a form of strict liability for bribery by their associates, subject to a defence of having adequate procedures to prevent bribery.
5) The Proceeds of Crime Act 2002 also embodies the English public policy against corruption.
6) The Bribery Act and the Proceeds of Crime Act take a much stricter and more far-reaching approach to corruption, including international corruption, than the previous law.
"The comment1 that it was 'questionable whether the moral principles involved [were] so weighty as to lead an English court to refuse to enforce an agreement regardless of the country of performance and regardless of the attitude of that country to such a practice' is one which is, in my judgment, if anything, somewhat understated. Outside the field of such universally-condemned international activities as terrorism, drugtrafficking, prostitution and paedophilia, it is difficult to see why anything short of corruption or fraud in international commerce should invite the attention of English public policy in relation to contracts which are not performed within the jurisdiction of the English courts. That it should be the policy of the English courts to deter the exercise of personal influence short of corruption and fraud to obtain valuable contracts in foreign countries in which such activity is not contrary to public policy by refusing to enforce contracts would involve an unjustifiable in-road into the principle of pacta sunt servanda."
"… albeit the award is not isolated from the underlying contract, it is relevant that the English court is considering the enforcement of an award, and not the underlying contract. The English court takes cognisance of the fact that the underlying contract, on the facts as they appear from the award and its reasons, does not infringe one of those rules of public policy where the English court would not enforce it whatever its proper law or place of performance. It is entitled to take the view that such domestic public policy considerations as there may be, have been considered by the arbitral tribunal. It is legitimate to conclude that there is nothing which offends English public policy if an arbitral tribunal enforces a contract which does not offend the domestic public policy under either the proper law of the contract or its curial law, even if English domestic public policy might have taken a different view."
"..it is in our view inconceivable that an English court would enforce an award made on a joint venture agreement between bank robbers, any more than it would enforce an agreement between highwaymen, Everet v. Williams (unreported): see Lindley on Partnership, 13th ed. (1971), p. 130, note 232."
"(1) English public policy applies so as to lead a court to refuse to enforce an illegal contract, even if not illegal at relevant foreign law, such as a contract to pay a bribe. The contract cannot be enforced because ex turpi causa haud oritur actio : out of a disgraceful cause an action cannot arise. The supply contract enforced by the Arbitrators was not and is not suggested to be an illegal contract, and the action to enforce it does not arise out of a disgraceful cause.
(2) There is no English public policy requiring a court to refuse to enforce a contract procured by bribery. A court might decide to enforce the contract at the instance of one of the parties. It is not that the contract is unenforceable by reason of public policy, but that the public policy impact would not relate to the contract but to the conduct of one party or the other.
(3) There is certainly no English public policy to refuse to enforce a contract which has been preceded, and is unaffected, by a failed attempt to bribe, on the basis that such contract, or one or more of the parties to it, have allegedly been tainted by the precedent conduct…"
1) ABL was an offshore shell company whose only income was the substantial payments under the Consultancy Agreements : Offshore status is hardly unusual. Nor is a start-up company having only one client. The business was significant in value and significant fees would not be out of place.
2) The sole individual who provided the services was Ms Guo Qi : As she was a consultant of a small start-up company, this is hardly sinister.
3) The services appear to have no real substance, particularly when compared to the contractual obligations and the large size of the sums claimed : There was no complaint about the substance of the services. Ms Guo Qi seems to have been sought by Alstom because of her previous work for them, and because of her connections. It was never denied that her services led to Alstom winning contracts worth €1 billion in sales. Alstom had a "rigorous and lengthy" due diligence process before the contracts were agreed.
4) ABL spent very significant amounts on entertainment and other expenses for which there is no transparency as to what was spent on whom and why : Proof of services is a question which the Tribunal went into very thoroughly because of the fact that it was the heart of the contractual case. The contracts did not all have the same requirements. The Tribunal, having weighed all the evidence, concluded there were sufficient proofs of services for two contracts, but not the third. As for expenses, a lack of transparency does not denote bribery – and the sums in question € 30-50,000 do not seem to be of the size which might themselves lead to questions.
5) ABL's accounts show that it paid €280,000 to SITICO, a state-owned company, pursuant to an undisclosed contract, which was entered into just before Consultancy Agreement No. 1 : The reason why this was in issue in the arbitration was not about corruption, but deceit. Alstom claimed this was unauthorised sub-contracting. The connection between this contract and an inference of corruption is hard to discern.
6) Ms Guo Qi reversed her position on the SITICO contract : The connection to corruption is not clear. This seems inadequate to provide any basis for an inference of entirely unrelated corruption.
7) It is unclear what (if anything) SITICO did for the €280,000 it received from ABL and whether SITICO or individuals connected to it received further financial benefits from ABL e.g. via what are recorded as expenses in ABL's accounts : As the SITICO contract does not relate to any of the Agreements it can provide no basis for an inference of corruption in the execution of those contracts.
8) A SITICO manager, who was employed at the relevant time, was convicted in 2016 of bribery and corruption offences : The conviction related to matters which had no connection with either ABL or Alstom and provides no evidence of corruption in connection with the relevant contracts.
9) ABL obtained sensitive and confidential documents and information from officials connected to the Chinese Ministry of Railways and has repeatedly declined to provide any cogent explanation as to how it came to obtain them : This is an area where ABL's evidence appears to be thin and explanations have not been consistent, as the Paris Cour d'Appel noted. Such documents might well, however, have been obtained without bribery. For example, the explanation given that there was a leak by the Chinese Government to "encourage" the most competitive bids is far from impossible.
10) Two very senior officials with whom Ms Guo Qi dealt were later convicted of crimes relating to bribery and corruption in the relevant period : However those convictions had nothing to do with Alstom, ABL or these contracts.
11) ABL was able to influence the award of Chinese government contracts to the benefit of Alstom : However this was the very service for which ABL was retained. Further the specific piece of influence is clearly explained as a legitimate piece of commercial persuasion as outlined above.
"a national court to which application is made for the annulment of an arbitration award must grant that application if it considers that the award in question is in fact contrary to Article 85 of the Treaty, where its domestic rules of procedure require it to grant an application for annulment founded on failure to observe national rules of public policy".
"it is in the interest of efficient arbitration proceedings that review of arbitration awards should be limited in scope and that annulment of or refusal to recognise an award should be possible only in exceptional circumstances".
"Member States attach particular importance to combating corruption in both the public and the private sector, in the belief that in both those sectors it poses a threat to a law-abiding society as well as distorting competition in relation to the purchase of goods or commercial services and impeding sound economic development...."
"Due to the concealed nature of acts of bribery, a contention that an arbitration award orders the payment of sums intended to finance corrupt acts may be reviewed by a court ruling on whether to grant exequatur solely on the basis of a set of indicia. Therefore the rights of the defence in this case concern the admissibility, under the rules of civil procedure, of the evidence produced by the appellant, the reality of the indicia and whether the indicia are sufficiently serious, precise and consistent, rather than precisely identified corrupt acts."
"the Court does not have jurisdiction to determine whether a party to the arbitration committed bribery... under the criminal laws of a national legal system, but only to determine whether recognition or enforcement of the award would contravene the objective of combating bribery."
1) Alstom had in February 2017 paid ABL the full €1.8 million that ABL was then seeking following the initial exequatur decision in France. That sum was paid following the issue of a "saisie-attribution" by ABL which was served on Alstom's bank, Société Générale, and a failed attempt by Alstom to overturn that seizure.
2) That money seems to have been held by ABL's French lawyers in a "CARPA" client account. CARPA stands for Caisses des Règlements Pécuniaires des Avocats, which translates literally as "funds for the pecuniary settlements of lawyers". It is a system of deposit-taking entities organised and operated by each of the various French Bars
3) ABL had at least technically had free use of the €1.8 million between February 2017 and July 2019. In fact, ABL's lawyers did not pass on the money to ABL but held the full sum pending the outcome of the Paris Cour d'Appel.
4) Following the decision of the Paris Cour d'Appel ABL was ordered to pay the sum back.
5) In early July 2019 it was frozen under a "saisie-conservatoire", on Alstom's initiative, pending developments in the French proceedings. The money was then transferred to a neutral CARPA escrow account to which ABL had no right of access.
6) There is an issue between the parties as to whether, whilst frozen, the funds were held for ABL and in their name and whether ABL could give instructions to release the monies.
7) At the time of the signing of Fussell 1 the money had not yet been paid back to Alstom. It remained in the escrow account in France pending outcome of the French proceedings until 29 January 2020.
"an application for permission [to enforce an award] must be supported by written evidence...
(c) stating either—
(i) that the award has not been complied with; or
(ii) the extent to which it has not been complied with at the date of the application".
"(1) The duty of the applicant is to make 'a full and fair disclosure of all the material facts:' see Rex v. Kensington Income Tax Commissioners, Ex parte Princess Edmond de Polignac  1 K.B. 486,514, per Scrutton L.J.
(2) The material facts are those which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers: see Rex v. Kensington Income Tax Commissioners, per Lord Cozens-Hardy M.R., at p. 504".
"Must show the utmost good faith and disclose his case fully and fairly … He must identify the crucial points for and against the application, and not rely on general statements and the mere exhibiting of numerous documents. He must investigate the nature of the cause of action asserted and the facts relied on before applying and identify any likely defences."