ICC Awards

'C. Public order issues

1. Parties' allegations

a. Claimant's allegations

86. Claimant submits that after the Partial Award had been rendered, it started enforcement proceedings before the competent state courts ... regarding [the orders to produce accounting information in] the operative part of the Partial Award ...

87. According to Claimant, the [state court] held ... that the arguments which have been raised by Respondent for terminating the Cooperation Agreement for cause (i.e. the allegations of illegal payments by Claimant to third parties, the involvement of [witnesses] in criminal activities and of Claimant's refusal to account on the activities under the Cooperation Agreement and to participate in the compliance procedure of Respondent) and the fact that the Arbitral Tribunal did not address the merits of such arguments, raise the concern whether the recognition of the Arbitral Award might violate the [the state's] public order ...

88. Claimant further explains that after it had initiated the enforcement proceedings, Respondent provided some accounting; this situation led Claimant to withdraw its request for enforcement proceedings ...

89. Claimant requests the Arbitral Tribunal to address in its Final Award the public order concerns raised by the [state court] and to dispel any doubts in this respect. In this connection, Claimant refers to Articles 27 and 190 para. 1 lit. e SPILA, Article V para. 2 lit. b of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Article 35 of the ICC Rules¹ ...

b. Respondent's allegations

90. Respondent notes that Claimant did not raise any prayer for relief with respect to the public order issue and points out that such prayer for relief would be inadmissible at this stage of the proceedings ... Respondent further holds that, in any event, it is not the Arbitral Tribunal's duty to address the public order concerns of a [state] court ...

2. Considerations by the Arbitral Tribunal

91. The Arbitral Tribunal first notes that Claimant fails to formally request the Arbitral Tribunal to decide on the public order issue. However, even if Claimant had brought forward a formal request in its prayers for relief, such request would have to be dismissed for the following reasons:

92. Pursuant to Art. 190 para. 2 lit. e. SPILA, the arbitral tribunal has a duty to render an award which complies with Swiss international public policy. Furthermore, Art. 35 of the ICC Rules provides that the Court and the Arbitral Tribunal shall make every effort to make sure that an award is enforceable.

93. The public policy issues were already raised in the context of the first stage of the arbitral proceedings which were terminated with the issuance of the Partial Award.

94. When rendering its Partial Award, the Arbitral Tribunal also considered Respondent's - albeit unsubstantiated - public order concerns (and which were raised before the [state] courts) and ensured that the Partial Award fully complies with Swiss international public policy. The proof of the Partial Award's compliance with public policy resides not least in the fact that none of the Parties challenged the Partial Award, let alone alleged a violation of public policy.

95. Moreover, the Partial Award was scrutinized and thereafter approved by the ICC Court. According to Art. 6 of the Appendix II of the ICC Rules, the ICC Court, when scrutinizing a draft Award, considers the requirements of mandatory law at the place of arbitration.

96. As Swiss international public policy is in accordance with international standards, the Arbitral Tribunal has made everything in its power to ensure that the Partial Award will also be enforceable abroad.

97. Consequently, Claimant's proposal, according to which the Arbitral Tribunal should assess the public order concerns raised by the [state] court, is groundless and, thus, disregarded.'