Claimant, an oil company, sought payments in money and in kind due to it under an agreement ('Protocole') that was part of a complex scheme of agreements governed by French law involving three oil companies (A, B and C) and an African state (X). The 'Protocole', between Claimant and State X (Respondent), was signed by a government that was subsequently overthrown in a civil war. The following government rejected Claimant's request, arguing that the agreement was void as it had been made in abnormal circumstances to enrich corrupt government leaders and was part of a set of specious contracts contrary to public policy. After examining typical indicators of corruption (lack of evidence, brevity of negotiations, unusual payment arrangements, disproportionately high remuneration; corruption endemic in country concerned, secrecy, incrimination of persons involved), the arbitral tribunal found evidence of corruption, held that the agreement was void and dismissed Claimant's claim.

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La demanderesse, une compagnie pétrolière, réclamait des paiements en numéraire et en nature qui lui étaient dus conformément à un protocole faisant partie d'un ensemble complexe de contrats régis par la loi française qui intéressaient trois compagnies pétrolières (A, B et C) et un État africain (X). Le protocole conclu entre la demanderesse et l'État X (la défenderesse) avait été signé par un gouvernement qui avait ensuite été renversé au cours d'une guerre civile. Le gouvernement qui l'avait remplacé s'opposait aux prétentions de la demanderesse, soutenant que le contrat était nul car il avait été conclu dans des circonstances anormales en vue d'enrichir des dirigeants gouvernementaux corrompus et faisait partie d'une série de contrats spécieux contraires à l'ordre public. Après avoir analysé un certain nombre d'indicateurs de corruption types (absence de preuves, brièveté des négociations, modalités de paiement inhabituelles, rémunération disproportionnée, corruption endémique dans le pays concerné, secret, accusations à l'encontre des personnes impliquées), le tribunal arbitral a considéré que la corruption était prouvée, conclu que le contrat était nul et rejeté les prétentions de la demanderesse.

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El demandante, una empresa petrolera, solicitó pagos en sumas de dinero y en especie de lo que se le adeudaba con arreglo a un acuerdo («Protocole») que formaba parte de un conjunto complejo de acuerdos regidos por la ley francesa que incluía a tres empresas petroleras (A, B y C) y a un Estado africano (X). El «Protocole», entre el demandante y el Estado X (demandado), fue firmado por un gobierno que posteriormente fue derrocado en una guerra civil. El gobierno siguiente rechazó la solicitud del demandante alegando que el acuerdo era nulo porque había sido celebrado en circunstancias anormales para enriquecer a dirigentes corruptos y que formaba parte de un conjunto de contratos engañosos contrarios al orden público. Después de examinar los indicadores típicos de corrupción (falta de pruebas, brevedad de las negociaciones, modalidades de pago inusuales, remuneración exageradamente elevada, corrupción endémica en el país en cuestión, secretismo, incriminación de personas involucradas), el tribunal arbitral encontró pruebas de corrupción, dictaminó que el acuerdo era nulo y desestimó la reclamación del demandante.

'3.1.1. Illegality of corruption

188. It is widely accepted under French Law (Cass. Req.; 5 Feb. 1902, D.P. 1902-1-158, Cass. Civ. 3 April 1912, D.P 1915, I, 71; Court de Fontmichel, L'arbitre, le juge et les pratiques illicites du commerce international, Panthéon Assas 2004, Paris, p. 36) that contracts pursuant to which the object is corruption [or which have been entered into because of corrupt practices] are illicit. In any event, neither of the parties contests that, as a matter of law, corruption constitutes an illicit consideration pursuant to Article 1133 of the FCC.

189. Furthermore, a majority of scholars supported by many arbitral awards consider that the immorality of bribery and sale of influence is based on a rule truly international in character, so that there is no doubt that such a rule must be considered as belonging to transnational policy (ICC no. 2730; ICC no. 1110; Lalive, in ICCA Congress Series no. 3 (New York/1986), p. 293). Some go as far as to say that there is a general consensus according to which there is a "common law to all nations" in the matter (Kosheri/Leboulanger, L'arbitrage face a la corruption et aux trafic d'influence, in: Rev. de l'Arb . 1984, p. 3, 5).

190. Finally, France has ratified the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (hereinafter "OECD Convention"). Article 1 OECD Convention reads as follows:

Each Party shall take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business.

Each Party shall take any measures necessary to establish that complicity in, including incitement, aiding and abetting, or authorisation of an act of bribery of a foreign public official shall be a criminal offence. …

191. France has implemented the OECD Convention on 30 June 2000 by means of Law no. 2000-595, which came into force on 29 September 2000 (Charpier, FCPA, OECD Convention and OECD Member States New Legislation, Lausanne 2004, p. 515). In that respect, France has confirmed and recognized the illicitness of bribery of foreign officials in international transactions.

192. In any event, Claimant does not contest that, as a matter of law, corruption qualifies as an illicit consideration.

193. In light of the above, whether it be under French law or international public policy rules, corruption is illicit. In other words, should corruption be shown in this case, the … Protocol [between Claimant and State X] would not be considered valid under French law.

………

3.1.3 Proof of corruption

249. Respondent relies on numerous abnormal conditions that allegedly reveal the illicit nature of the … Protocol [between Claimant and State X] in that it allowed for the enrichment of certain [State X] leaders.

250. Insofar as the Arbitral Tribunal found that the structural adjustment program as well as the price of … was the alleged consideration and that Respondent contends that such obligations were respectively of a fictitious nature and derisory, the Arbitral Tribunal will analyze their nature and determine whether they in fact hide another consideration, namely corruption, being recalled that "consideration" stands as a most appropriate translation for "cause" under governing French law, especially Art. 1133 of the FCC.

251. It is a general principle that the burden of proof shall be borne by the party alleging illicitness of the contract (Civ. 1, 1st October 1986 in Bulletin 1986 I no. 230, p. 220). However, such illicitness is often difficult to prove, because the parties will mask the true purpose behind inoffensive contractual provisions (Mayer, Les commissions illicites, publication CCI no. 480/2, 1992, p. 51). Tribunals - or arbitrators - may, in principle, use any means of proof authorized by law - it being specified that they are not bound by the wording of the contract (Civ. 2 Jan. 1907, Bulletin Arrêts Cour de Cass. Chambre Civile no. 1, p. 1).

252. For this reason arbitrators often have no choice but to rely on extra-contractual indications (ICC case no. 8891, in: J.D.I. 4, 2000, p. 1076, 1079; Kosheri/Leboulanger, [L'arbitrage face a la corruption et aux trafic d'influence, in: Rev. de l'Arb . 1984], p. 3, 6; Rossel/Prager, Illicit Commissions and International Arbitration: The Question of Proof, in (1999) 15 Arbitration International 4, p. 331; Tschanz/Vulliemin, Chronique de jurisprudence étrangère: Suisse, in (2001) Rev. de l'Arb. at pp. 885-912). It is indeed not necessary that the illicit nature of the contract be deduced from the terms of the contract (Malaurie/Aynes, [Les obligations, Paris 1999] , p. 304). The standard of proof is thus weakened and based on a presumption created by indications (Kosheri/Leboulanger, op. cit. , p. 3, 6; Rossel/Prager, op. cit. , p. 331; Tschanz/Vulliemin, op. cit. ).

253. In this respect the following has been found to constitute indications of illicit activity:

- The inability to produce proof of any activity (ICC case no. 8891, op. cit. p. 1076, 1079; Rossel/Prager, op. cit. , p. 331) [a].

- The duration of the negotiation (ICC case no. 8891, op. cit. , p. 1076, 1079; ICC case no. 3916. in J.D.I 1984, p. 930, 932) [b].

- A percentage-based remuneration (ICC case no. 8891, op. cit. , p. 1076, 1080; Rossel/Prager, op. cit. , p. 331 ; Kosheri/Leboulanger, op. cit. , p. 3, 7; Berkeley, lnstitut du droit et des pratiques des affaires internationales de la CCI - Contrats d'intermédiaires et commissions illicites, in: (1990) Rev. de l'Arb, p. 736) [c].

- An excessive level of remuneration (ICC case no. 8891 op. cit. , p. 1076, 1080; Rossel/Prager, op. cit. , p.331 ; Kosheri/Leboulanger, op. cit. , p. 3, 6; Derains, La lutte contre la corruption - le point de vue de l'arbitre international: Contribution au Congres AIJA, Montreux 1996) [d].

- The country exposed to known corruption problems (ICC case no. 1110; Kosheri/Leboulanger, op. cit. , p. 3, 9; Tschanz/Vulliemin, op. cit. ) [f].

254. The Arbitral Tribunal will review the foregoing indications in turn, all of which have been raised by Respondent in its submissions …

a) [Claimant]'s inability to produce proof of its activity

255. Respondent suggests that the lack of any real performance of Claimant is an indication of the latter's illicit intervention. Indeed, Claimant has not performed effectively any obligation.

256. As indicated above, albeit under relaxed standards, the burden of proof rests upon the party alleging corruption. However, this is not true when it comes to the proof of an activity. Irrespective of the corruption issue, in order to prevail, i.e. to show its entitlement to the payment of the price, Claimant has to demonstrate its own performance. Hence, considering the SAP [structural adjustment program] is part and parcel of Claimant's obligations, as has been found, it follows that Claimant has the onus probationis in this regard.

257. In this respect, Respondent contends that Claimant has been unable, throughout these proceedings, to produce a single document (letters, reports, studies, consultation papers, employees' witness statements or anything else) establishing in any manner that it carried out its obligations under the structural adjustment program. Respondent further purports that Claimant orchestrated the testimony of one of its representatives … Apart from the very doubtful value of the latter's oral testimony, there is not the slightest evidence of any kind. It has not been possible to identify any trace of Claimant's alleged activities, either in the [State X] ministries, or at the IMF, or at the main economic operators, namely [Companies B and C]. Further, the implementation of a structural adjustment program under the auspices of the IMF is a large-scale operation which generally involves specialized business of the first rank. It is obvious that [Claimant] was incapable of handling the implementation of such a program in the [State X]. In any event, the implementation of such a program usually requires the collection of certain information from the local economic operators. In this respect neither [Company C] nor [Company B] received the slightest request for information from Claimant.

258. In response to the latter assertions, Claimant purports that the activity required from [Claimant] under the … Protocol [between Claimant and State X] was the purchase of Royalty Oil … [Claimant] paid this money and assumed the risk of the contract. [Claimant]'s agreement to perform [Company A]'s obligations, with the consent of [State X], under the structural adjustment program ultimately was separate and distinct from the purchase of Royalty Oil and its work was paid for by [Company A] - not [State X] - through the Structural Adjustment Service Agreement. Nevertheless, [Claimant] has demonstrated that it performed those activities to the satisfaction of the [State X] government. [State X] for

its part has failed to present any evidence which challenges the legitimacy of the work related to the SAP set forth in Article 3.3 of the Purchase Agreement. Claimant relies on [one of its representatives]'s explanation according to which the documents were over 10 years old and there was little value in maintaining the reports which were very country specific. Moreover, Claimant contends that it had no reason to think that these records would be important in this litigation which was related to its payment of … for 5,000,000 barrels of Royalty Oil, not a claim for compensation for work related to structural adjustment. Claimant further contends that Respondent's assertion that [Claimant] and [Company A] did not have the resources and experience to carry out the obligation of Article 3.3 of the Purchase Agreement is absurd and likewise unsupported by any evidence in the record. [Claimant] has highly experienced, sophisticated personnel and consultants. The reasons behind [Company A]'s decision to assign its obligation to [Claimant] bear no relevance to the validity of the clause or the parties' compliance with their obligation.

259. The inability of an agent to produce proof of his activity has been found to be an indication of the illicitness of the contract. Indeed, it is to be expected that a consultant's activities be documented by means of written memoranda and reports. Consequently, an agent's refusal to provide evidence of his activity constitutes a priori an indication of illicitness (ICC case no. 8891, op. cit. , p. 1076, 1079; Rossel/Prager, op. cit. , p. 331).

260. Such principle, generally applied to agency contracts, is relevant in the case at hand. The rights assigned to Claimant by means of 9.2 of the Amendment are the consideration for a fictitious undertaking (see hereinafter), namely the SAP obligation. Moreover, the cash-balance of the price paid by [Claimant] was derisory (see hereinafter). Thus, Claimant was remunerated without providing any valid consideration other than offering [Company A] the opportunity to purchase oil from [State X] … It follows that in this respect Claimant acted as an agent and that the … Protocol [between Claimant and State X] was in any event the result of its intermediary position. Thus, should the true consideration for the assignment provided in 9.2 of the Amendment be corruption, the … Protocol [between Claimant and State X] would suffer the same fate, namely nullity (see section 3.2).

261. In the case at hand it is extremely compelling that the activity related to the SAP obligation was not documented or at least could not be evidenced by any document or balance sheet. Considering such an undertaking was of great importance, it is undoubtedly clear that Claimant, had it actually performed its obligation under the SAP, would have been able to produce evidence of the said work. Not to mention that Claimant argues that it employed fifteen high level employees as well as managing contractors, companies or individuals who could have submitted a witness statement. What's more, the remuneration of those companies would have appeared in Claimant's books which it should still hold. It would be quite impossible to conduct the kind of extensive SAP operation which Claimant argues it carried out without a proper accounting. Furthermore, Claimant could easily have obtained and produced in this arbitration documents evidencing its contacts with the World Bank and other banks (such as transfers of funds to [State X] or payment of its expats).

262. While one could acknowledge that Claimant did not have a duty to keep documents that are over 10 years old, the documents related to the structural adjustment program, if any, are not over 10 years old. Indeed, Claimant commenced legal proceedings against Respondent in 1998 … As for the relevance of such documents for the course of this arbitration, there is no reason Claimant would have chosen solely to keep correspondence, contracts, memoranda and reports related to the sale issue exclusively. Claimant is pointing out that such documents related to the SAP only and had no relevance with respect to the "… Protocol [between Claimant and State X]", a mere Oil Sales Contract. Assuming arguendo that the performance of the SAP was not a part of the consideration for the delivery of 5,000,000 barrels, the conclusion would remain unscathed.

263. First, [Claimant] could not begin its performance of its SAP obligation prior to the occurrence and contractualisation of such obligation, i.e. at the earliest on … 1993 (and at the eleventh hour) or, more logically, on either … 1994 (Amendment) or, even more logically, on … 1994 (Support Agreement's date). Thus, even the initial date of the SAP performance was less than ten years before the initiation of not only the dispute but also this very arbitration.

264. Second, [Claimant] professes to be experienced and expert in SAPs, which require an extensive knowledge of states, governments, administrations and their ways of functioning. It is obvious that a defense against a valid and potentially undisputable claim is set-off, for instance by a claim arising out of misperformance under arrangements between the same parties.

265. Thus, on balance, it is much more credible that [Claimant] did not destroy its files but that such files never existed or, in a more likely fashion, were scarce and thus not supportive of its own case and arguments.

266. In turn, this sheds a rather crude light on [Claimant's representative]'s testimony. Indeed, the latter's statements contradict the record insofar as no documentary evidence substantiates them.

267. Furthermore, [an oil specialist]'s testimony is compelling:

Q. Are you personally familiar with the work that was done by [Claimant] under the structural adjustment program, under these agreements?

A. (speaking in French, interpreted.) To my knowledge, no work was undertaken, because to undertake such work, you need to have access coming from a large number of economic players, and the economic players in this case, representing some 60 per cent of the national economy, were [Company C] and [Company B]. Therefore, such a program would have been

impossible to carry out without coming first of all to [Company C] or [Company B] to gain data. And I can confirm that neither [Claimant] nor [Company A] ever came to [Company B] to ask for anything. To my knowledge, they never went to [Company C] either. And therefore, I have great difficulty in understanding how the work could have even started. …

268. Finally, the record does not convincingly show how [Claimant] would have had the expertise to conduct such an undertaking.

269. It follows that Claimant has not substantiated its allegation according to which it performed its SAP obligation.

270. Turning to Claimant's second allegation according to which it performed its obligation under the … Protocol [between Claimant and State X], namely payment of …, the Arbitral Tribunal will review it not so much related strictly to the issue of activity or performance but rather according to the issue of its fictitious nature. Indeed, the Arbitral Tribunal considers that a fictitious consideration would amount to the same result as the Claimant's absence of activity; in both cases the alleged "cause" is only a façade that hides the true intention of the parties.

271. It is Claimant's contention that the price of … per barrel was fair and reasonable given the structure of the contract - upfront payments for delivery of oil over many years - and extreme risks associated with [State X]'s unstable situation and the dominance of [Company C] and [Company B] in the national oil industry. Moreover, Claimant purports that the assertion that payments due from [Claimant] were in reality paid by [Company A] is false. Claimant's role in the transaction was open and well defined in the various agreements and documents. Pursuant to an explicit Loan Agreement, [Company A] loaned [Claimant] the money for the payments for the Royalty Oil. As with any loan, [Claimant] was required to pay [Company A] back with interest and was obliged to pay the money back to [Company A] regardless of Respondent's performance. Moreover, documents sent to [State X] confirmed that Claimant was the performing party, not [Company A]. Finally, the … Protocol [between Claimant and State X] mirrored the [State X]'s agreement with [Company A] but on a smaller scale. While [Company A] purchased 50,000,000 barrels of Royalty Oil for …, [Claimant] purchased 5,000,000 barrels for …

272. For its part, Respondent argues that, based on the findings of its expert …, Claimant had made good on the [money] it borrowed from [Company A] six month [sic] after the [Claimant] Protocol was executed. This shows according to the former that there was no extreme risk involved in this transaction and that Claimant never actually had any tangible immobilization. It therefore follows that the price of … per barrel is a giveaway price ("vil") and that there is no consideration ("cause").

273. Both experts agree that the market price for the disputed oil at the time of the execution of the … Protocol [between Claimant and State X] was around [five times higher]. It is fair to say that because, as mentioned above, the … Protocol [between Claimant and State X] was part of the contractual nexus between Claimant, Respondent and [Company A], the parties simply applied the terms of the Purchase Agreement to theirs. At any rate, it definitively is what a reading of the … Protocol [between Claimant and State X] as a separate and independent contract would evidence. The price paid by Claimant was thus equal to one fifth of the market price. Obviously the risk involved has to be quantified and has an effect on the price. In any event, neither the transaction risk nor the time risk justify the price of … per barrel.

274. Indeed, Respondent's expert witness rightly points out that the oil purchased by Claimant was later repurchased by the very company that was extracting the oil in the first place, namely [Company B], so that with hindsight the transaction risk was extremely limited. It would have been up to Claimant to require a direct contractual relationship with [Company B] if it had been ready, willing and able to do so.

275. More importantly, Claimant never made any out-of-pocket disbursement for the initial sum of … Nor were the assets physically wire-transferred to its attention. Indeed, [Company A] paid [amount] directly into Respondent's bank account. This alone would not be objectionable.

276. But as mentioned above, because the parties often mask the true purpose behind inoffensive contractual provisions, tribunals are not bound by the sayings of the contract (Civ. 2 Jan. 1907).

277. In this respect, while the terms of the Loan Agreement … are usual, the implementation is not. Indeed, as mentioned earlier, [Company A] paid … directly into Respondent's bank account and Claimant repaid its creditor - rather [Company A] repaid itself - directly with the proceeds of the Royalty Oil … Thus, Claimant never in fact took possession of the [money] or the sums that served to repay the loan.

278. Even more compelling is the fact that Claimant's share received by [Company A] for the month of …, namely the month following the execution of the … Protocol [between Claimant and State X] and before even finishing to pay its due to Respondent, was about … One month later, Claimant's share equalled about another … Thus, in the two months following the execution of the … Protocol [between Claimant and State X], Claimant's share received by [Company A] amounted to about [8% of the total price of the oil]. The Arbitral Tribunal fails to see where the risk associated to this operation lies, especially as it does not seem that [Claimant] supplied [Company A] with any security for repayment.

279. Moreover, the record shows that on the initial wire transfer order it was [Company A] that was listed as the ordering party before it was modified in order to have [Claimant]'s name appear as such… In this respect, it is noteworthy that Recommendation 5 of the FATF Standards (Financial Action Task Force) provides that financial institutions should undertake customer due diligence measures, including identifying and verifying the identity of their customers, notably when carrying out wire transfers. In other words the FATF holds that the non­disclosure of the true ordering party is an indication of money laundering. In this respect it is particularly odd that [Company A] appeared, at first, as the ordering party.

280. In any event, with such scheme, Claimant received large amounts without advancing any money or performing any activity whatsoever …

281. Truly, [Company A] and [Claimant] had initially entered into their Joint Venture Agreement and had a relationship which went beyond the limited scope of their … Loan Agreement. Precisely, it remains that such Loan Agreement was certainly not a transaction which an oil company would have entered into without reasons going beyond its compensation by way of interest, especially without security for repayment. At that time (May 1994) however, the two parties had not yet agreed on the terms and conditions of [Claimant]'s taking over of [Company A]'s SAP obligations (Support Agreement …). This might explain [Company A]'s reliance upon [Claimant] s ability to repay the loan but it is much more likely that [Company A] accepted a risk which it held limited in time, and in substance, due to [Claimant]'s obvious close ties with the [State X] deciding bodies.

282. Furthermore, the only non-party witnesses, …, expressed the same concerns …

283. [These witnesses], both specialists in the oil business, with two of the major players of the world oil market, namely [Company B] and [Company C], were obviously bothered by the price agreed between the Parties and the litigious contracts in general.

284. Incidentally, [Company A]'s agreement with [State X] is not comparable to Claimant's agreement with the latter. Indeed, on the one hand, although the price per barrel was the same …, the amount of [Company A]'s upfront payment and thus its commitment to purchasing barrels of oil was far more important than that of Claimant's - this obviously set pressure on the price. More importantly, [Company A]'s risk was much greater considering it was not able to recover its initial investment in a matter of a few months, as was the case for Claimant.

285. Finally the Arbitral Tribunal has already held that the SAP obligation assigned to [Claimant] in the Amendment remained part of its obligation.

286. It follows that Claimant was unable to prove any tangible activity in relation to its SAP obligation. In conclusion, the Arbitral Tribunal is compelled to find that this is a compelling indication of a strong suspicion of corruption.

b) Duration of the negotiations

287. Respondent argues that the short negotiation, namely less than two weeks, which led to the execution of the Purchase Agreement, is an indication of its illicit nature.

288. Claimant contends that the contracts were not entered into precipitously as [State X] has claimed. [State X's President]'s efforts to seek assistance from [Company C] were rebuffed, and he therefore began searching for alternate prospects for foreign investment and exploration. [State X]'s discussions with [Claimant] and [Company A] began as early as [year], and representatives from [Claimant] and [Company A] made several visits to [State X] to meet with [State X] ministers to discuss such opportunities. [State X]'s needs were immediate and the parties reached an agreement …

289. Authorities and case law have found that negotiations of a very short duration that nevertheless achieve the desired result is [sic] an indication of illicitness (ICC case no. 8891, op. cit. , p. 1076, 1079; ICC case no. 3916, in J.D.I 1984, p. 930, 932).

290. In the present case, regardless of the [State X]'s immediate needs, the record does not show with clarity any contact between the parties or [Company A] and Respondent prior to … A 3-month negotiation period without substantial documentation of events arising during that period (letters, other communications, visit reports, minutes of meetings, price calculations), and not 2 weeks as asserted by Respondent, for the sale of an important quantity of oil fosters suspicion about Claimant's short successful intervention. It goes without saying however that such an inference does by no means suffice to find that the consideration of the … Protocol [between Claimant and State X] was corruption.

c) Remuneration based on a percentage

291. Respondent argues that the remuneration mode was unusual.

292. Respondent asserts that Article 9.2 of the Amendment transfers to [Claimant] the right to lift 25% of the Royalty Oil pursuant to the Amendment and to receive 75% of the royalties paid in cash to [Company A]. One may wonder on what grounds [Company A] accepted the transfer of a significant part of the Royalty Oil under the pretext of the purported acceptance of obligations arising from the implementation of a SAP without any real substance. Respondent adds that in reality, this clause is a poor cover for the payment of commissions to [Claimant] paid to remunerate [Claimant] for its illicit intervention which made possible the conclusion between [Company A] and [Claimant] of contracts infringing public policy. Further, Respondent contends that the sums received based on the Support Agreement that were allegedly supposed to remunerate Claimant for its work in relation with the SAP obligation were curiously linked to the number of barrels lifted by [Company A]. Thus, these disbursements also seem to indicate hidden commissions.

293. Claimant's answer to the latter arguments is general, namely that there was nothing abnormal or troubling about the Purchase Agreement or its amendments and protocols. Further, it asserts that the only relevance of the Support Agreement to this dispute is that it demonstrates that [Claimant] ultimately was paid by [Company A] - not [State X] - to perform [Company A]'s obligations with respect to its work related to structural adjustment projects. The Agreement provided that as long as [Company A] owed these obligations to [State X], it would pay [Claimant] to perform them.

294. The Arbitral Tribunal notes that it is not customary for a consultant's remuneration to take the form of a percentage of the amount of the contracts awarded to the company (ICC case no. 8891, op. cit. , p. 1076, 1080; Kosheri/Leboulanger, op. cit. , p.3, 7; Rossel/Prager, op. cit. , p. 331; Berkeley, lnstitut du droit et des pratiques des affaires internationales de la CCI - Contrats d'intermediaires et commissions illicites, in: (1990) Rev. de l'Arb, p. 736).

295. Truly, [Claimant] was not merely a consultant (and probably not a consultant at all). However, its role as a joint venture partner seems to have been restricted to supplying [Company A] with the opportunity to acquire Royalty Oil, i.e. a middleman activity.

296. The fact that Claimant was assigned over 25% (25% in kind and 75% in cash) of [Company A]'s interest for the undertaking of a fictitious obligation is an indication of possible corruption: a broker commission is not in the vicinity of 25% of the gross revenue of a deal.

297. Although the validity of the Support Agreement is not the issue at stake in these proceedings, it is troubling that Claimant's remuneration for the performance of SAP - obligation that was already remunerated by [State X] through the Amendment and the … Protocol |between Claimant and State X] - was linked to the Royalty Oil received by [Company A]. Indeed, the Arbitral Tribunal does not see what consideration other than the implementation of the Joint Venture Agreement could have justified such payments.

298. In any event, that Claimant received additional payments from [Company A] for the

performance of a fictitious obligation only fosters the finding of the illicitness of the whole transaction.

299. Finally, the Joint Venture Agreement that grants Claimant a participating interest of 25% in - among other things - Royalty Oil is a compelling indication of corruption. Indeed, the Amendment and the … Protocol [between Claimant and State X] served as implementation instruments of the latter agreement and Claimant neither had any activity in relation to SAP nor actually disbursed sums of its own in the operation. There is thus no justification whatsoever that Claimant be paid such considerable amounts.

300. It follows that Claimant's remuneration mode was unusually percentage-based. Such finding is an indication of a strong suspicion of corruption.

d) Excessive level of remuneration

301. Respondent contends that the disproportionate nature of the amounts paid to Claimant confirms the illicit nature of its intervention.

306. [The amount of the profit made by Claimant] is extraordinarily high considering Claimant did not conduct any activity other than offering the opportunity to [State X] to purchase oil and did, at the most, "risk" a[n] … investment [of a limited amount], to boot hundred percent financed based. As such it acted as an intermediary. Such a commission is clearly disproportionate and is an indication of a strong suspicion of corruption.

307. Indeed, it is unusual that an agent receives a commission of more than 4 or 5 per cent. The amount paid to the agent must be compared to the actual services performed. A high commission rate (such as 8 per cent in a cited case) leads to a presumption that the intermediary is making pay-offs (ICC case no. 8891 op. cit. , p. 1076. 1080; Rossel/Prager, op. cit. , p. 331; Kosheri/Leboulanger, op. cit. p. 3, 6; Derains, La lutte contre la corruption - le point de vue de l'arbitre international : Contribution au Congres AIJA, Montreux 1996).

308. In the case at hand, considering that [Claimant]'s intermediary undertaking led to the initial purchase of oil by [Company A] for an amount of …, Claimant has received a commission rate close to 15 per cent of that amount. This is much more than what has been held to be high enough as to lead to the presumption that the intermediary is making pay-offs. Furthermore, if the contracts had been performed to their end, [Claimant]'s entitlement (25%) would have been a much higher percentage.

309. The Arbitral Tribunal therefore assumes that Claimant's intervention did involve inappropriate payments that led to the execution of the Purchase Agreement.

e) [State X]'s corruption problems

310. Respondent contends that taking advantage of the financial crisis in [State X] and the corruption of its officials, [Company A] managed to get a hand on the country's natural resources at a ridiculous price.

311. Claimant's answer to the above assertion generally consists in submitting that Respondent relies entirely on speculation and insinuation, not relevant credible evidence to support its factual assertion.

312. As already stated, case law and legal authors apply a weakened standard of proof based on a presumption created by indications …

313. It follows that as it is the case generally, corruption will rarely be substantiated by clear evidence (Kosheri/Leboulanger, op. cit. , p. 3. 6). Thus, after determining what the true intention of the parties was - such determination being perfectly admissible, insofar as the illegality of the consideration is generally construed by subjective means -, the Arbitral Tribunal may corroborate its findings with generally accessible knowledge of the usages or business practices of the determined country, which must be of objective nature (Kosheri/Leboulanger, op. cit. , p. 3, 9; Chevalier, Remarques sur l'utilisation par le juge de ses informations personnelles, Rev. trim. dr. civ., 1962, 5). One of the indications that is held to be relevant is the fact that the involved country is subject to real corruption problems (Tschanz/Vullieman, op. cit. ). In this respect, Judge Lagergren (ICC no. 1110) mentioned the following:

Under the Peronist regime, anyone willing to do business in Argentina was confronted with the issue of bribes; the practice of paying commissions to individuals in a position of influencing or of deciding of the granting of a public market was apparently more or less accepted or in any event tolerated in Argentina at that time (Free translation)

314. Lagergren's view is upheld by more recent case law and legal authors (ICC no. 3916; Kosheri/Leboulanger, op. cit. , p. 3, 9).

315. It is clear that in the case at hand, one cannot overlook the well-known fact that [State X] was subject to serious corruption problems. The parties indeed agree on this. …

316. It follows that the findings revealed by the record are objectively corroborated by the conditions prevailing at the relevant time in [State X].

f) Other indications related to [Claimant] and its Chairman

317. Respondent refers to various other indications to support its claim of illicitness.

The secret character of Claimant's intervention

318. First, Respondent contends that the secret character of [Claimant]'s intervention further indicates the illicitness of the contract. In this respect, Respondent argues that payments due by Claimant were in fact made by [Company A], the Royalty Oil which allegedly should have benefited [Claimant] was available to [Company A] and commercialized by [Company B] on behalf of [Company A], and [Claimant] has obviously not complied with its alleged obligation relating to the structural adjustment program. Furthermore, the Accord and Satisfaction Agreement which reserves third party rights does not explicitly mention [Claimant]. Finally, [Claimant] s idleness … proves that it knew at the time that it could not assert any legitimate rights vis-a-vis Respondent.

319. Claimant retorts that Respondent's characterization is plainly contradicted by the reality of the situation. Claimant's role in the transaction was open and well-defined in the agreements and documents. [Claimant] s name was listed on the wire transfer as the ordering party and it confirmed payment by letters to the Minister and informed Respondent that it had designated [Company A] as its payment agent for its rights under the [Claimant] Protocol. Nor does [Claimant] s sale of oil to [Company B] through [Company A] suggest any fraudulent behavior. [Company B], Respondent's agent, knew and had reviewed the Purchase Agreement and its Amendment and therefore knew about Claimant's rights to 25% of the Royalty Oil as set forth in the [Claimant] Protocol, yet [Company B] still purchased 100% of the Royalty Oil under the Purchase Agreement pursuant to the [Company B] Sales Agreement. Furthermore, the allegation of non-compliance of the SAP obligation is irrelevant. As to the Accord and Satisfaction, the parties had the courtesy of not mentioning other parties by name. Finally, [Claimant] was not passive in asserting its rights. [Company A], on behalf of [Claimant], repeatedly protested [State X]'s failure to deliver Royalty Oil after [date]. It was perfectly appropriate that [Company A], as [Claimant]'s payment agent, contact [State X] regarding the failure to deliver. Moreover, Ambassador … met with [State X] officials on behalf of [Claimant] to discuss [State X]'s failure to fulfill its obligations.

320. The secret character of a contractual relationship may obviously be an indication of corruption.

321. However, the Arbitral Tribunal does not consider that in the case at hand the secret character of Claimant's intervention, if any, reveals an illicit behavior of the parties.

322. Indeed, for one thing, it does not seem that [Claimant]'s intervention was secret, in any event not after the execution of the Amendment. All parties to the latter contract were aware of [Claimant] s rights provided in Article 9.2 of the Amendment. The Prime Minister, the Minister of Finance and the Minister of Hydrocarbons signed the Amendment that expressly mentioned [Claimant]'s name; whether they read the instrument before signing is of course irrelevant. In that respect, Claimant's intervention was not secret.

323. Turning to the … Protocol [between Claimant and State X], it is troubling that it was solely signed, on [State X]'s part, by former Minister of Hydrocarbons … Such indication could foster the illicitness of the operation. However, the core of the operation was known to all the parties involved. They were aware that Claimant was lifting 25% of the Royalty Oil delivered to [Company A]. Indeed, the … Protocol [between Company A and State X] - signed, on [State X]'s part, by the Prime Minister, the Minister of Finance and the Minister of Hydrocarbons - refers expressly to Claimant's rights and provides that only the 75% of the Royalty Oil delivered to and lifted by [Company A] shall be counted in determining when the fifty million barrels - [Company A]'s rights - have been lifted. In other words, the parties were aware that Claimant would be granted the right to lift oil in addition to [Company A]'s fifty million barrels.

324. The Arbitral Tribunal thus finds that Claimant's intervention cannot be held as secret as to lead to the conclusion that it fosters the illicitness of the operation.

The conviction of the [State X] leaders

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328. Whatever the circumstances alleged by Claimant and surrounding the political contest of the [State X] convictions, they are additional indicia converging with this Tribunal's findings.

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3.1.4. Conclusion

340. The Arbitral Tribunal finds that the real intention of the parties was illicit. Indeed, the record shows that the SAP obligation was to be undertaken by Claimant as a partial consideration for the deliveries of Royalty Oil under the … Protocol [between Claimant and State X] and that the price paid for the delivery of oil was derisory. Respondent has provided indications to the Arbitral Tribunal that have set a presumption of illicitness, which Claimant failed to rebut by patently failing to prove any activity in relation to the SAP obligation or any real consideration for the deliveries of oil. Hence, it is reasonable to infer from the record that the large amounts received by Claimant were received, although not entirely, partly in connection with the corruption of certain [State X] officials

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3.2. The contract is null and void

343. The Parties do not contest that as a matter of law a contract that has an illicit consideration or has been induced by an illicit consideration is null and void.

344. Nevertheless for the sake of completeness, Article 1131 of the FCC reads as follows:

L'obligation sans cause, ou sur une fausse cause, ou sur une cause illicite ne peut avoir aucun effet.

An obligation lacking any consideration, or based upon a false consideration, or an illicit consideration shall have no effect. (Free translation)

345. This provision notably entails that a contract that has an illicit consideration is null and void.

346. The Arbitral Tribunal has found that the true intention of the parties behind the contractual provisions of the … Protocol [between Claimant and State X] was illicit. Thus, the … Protocol [between Claimant and State X] shall be deemed null and void.'