'297. As already indicated in his Procedural Order No. 1 ... the Sole Arbitrator would like first of all to briefly define his role in a case of an allegation of bribery. According to scholars, in particular to Matthias Scherer, "the crucial issue in arbitration proceedings where a case of corruption is alleged is not whether it must be punished, but rather whether corruption is demonstrated. Straightforward evidence of corruption is available only in rare cases. Devoid of any power to compel third party witnesses or to open a criminal investigation, arbitrators must rely on circumstantial evidence in order to decide whether a case of corruption has occurred." (Scherer, "Circumstantial Evidence in Corruption Cases Before International Arbitral Tribunals", 2002 Int. A.L.R., p. 29.)

298. The Sole Arbitrator further makes reference to an ICC case stating that "the demonstration of the bribery nature of the agreement has to be made by the Party alleging the existence of bribes (hereafter the 'alleging Party'). A civil court, and in particular an arbitral tribunal, has not the power to make an official inquiry and has not the duty to search independently the truth. A civil court has to hear the allegations and proofs offered by the parties. The alleging Party has the burden of the proof. If its demonstration is not convincing, the tribunal should reject its argument, even if the tribunal has some doubts about a possible bribery nature of the agreements." (ICC Case No. 6497, p. 73.) (Emphasis added by the Sole Arbitrator.)

299. The standard of proof is high, especially if the party that accuses the other of corruption is itself party to the contract involving bribery (Scherer, op. cit., p. 30).

300. It must be underlined that the Sole Arbitrator is not a criminal authority and will not intervene in support of any national criminal authority. The decisive question for the Sole Arbitrator is "whether the circumstantial evidence constitutes a 'faisceau d'indices' which establishes corruption" since in practice, a direct proof of corruption is rarely available (Scherer, op. cit., p. 31).

301. In international arbitration, a defence based on an allegation of bribery shall however be subject to a rather strict test:

In international arbitrations it makes sense to impose a heightened standard of proof on a party raising a defence based on an allegation of bribery. In particular, if the burden of proof is shifted from the defendant to the claimant with respect to the performance of the contract, it is only fair that the defendant carry higher than usual burden with respect to its defence based on an allegation or suspicion of bribery. Otherwise, it would be temptingly simple for the defendant to raise an allegation of bribery, without any supporting evidence, merely in order to shift the burden of proof to the claimant and thus to improve its chance of avoiding payment obligations under the contract.

(José Rosell and Harvey Prager, "Illicit Commissions and International Arbitration: The Question of Proof" (1999) Arbitration International Vol. 15, No. 4 at p. 348.)

302. Under Swiss law a contract having illegal contents or violating bonos mores (morality) is null and void (Art. 20 CO). If the bribery nature of the Agreement would be demonstrated, such Agreement would be null and void under Swiss law since it is illegal to pay bribes. This not because such bribe would be prohibited by the criminal law of the country in which bribes had been paid, but because the bribes in themselves cannot be, in Swiss law, the object of a valid contract.

303. The Sole Arbitrator will examine below circumstances that have been argued by the Parties and will assess whether there is enough circumstantial evidence which could convince him of the alleged existence of bribery. It is reminded that the Sole Arbitrator should rely upon a number of factors rather than on one single element, since "no single element has been established in practice as being conclusive of bribery" (Scherer, op. cit., p. 29). It is the convergence of these indicators that shall result in an arbitral tribunal making a finding of corruption (Noradèle Radjai, "Where there's smoke, there's fire? Proving illegality in international arbitration", Arbitration Newsletter, March 2010, pp. 139 to 143).

304. In the present case, the Sole Arbitrator first notes that the amount of the percentage commission, namely 2%, is not unusually high and does not constitute a "red flag" indicating a case of bribery. This 2% commission has been confirmed by [witnesses] to be an average percentage usually paid by the Respondent ...

305. With respect to the Respondent's allegation that the Claimant did not prove the services provided under the Agreement, the Sole Arbitrator reminds the Parties that most brokerage contracts provide that the broker's commission will depend on his services being the cause or reason for the award of the main contract to the principal (Art. 413 para. 1 CO). For the Swiss Supreme Court, there is a presumption of causation if the broker has undertaken an activity that may result in the award of the contract (ATF 131 III 268 = SJ 2005 I 104; SJ 1977 33).

306. Pursuant to the ICC Case No. 5622 (published in [1993] ASA Bull. 247), "a principal who pays the agent, congratulates him on his services or fails to make any reservations for incomplete work after the award of the contract for which he retained the agent cannot complain in a subsequent arbitration that the agent failed to perform the contract" (Scherer, op. cit., pp. 31 to 32). In that arbitration case, the arbitrator concluded that the principal tacitly approved the agent's services.

307. In the present case, it is undisputed that the Respondent entered into project contracts with [company X] and the project manager ... confirmed that it was thanks to the Claimant's intervention ...

308. Moreover, the Respondent paid the commission due to the Claimant for almost two years after it was granted the project contracts and without making any inquiry about the services actually performed by the Claimant. Therefore, this Respondent's behaviour evidences that the Claimant has rendered the services expected from it under the Agreement.

309. Consequently, this Respondent's argument cannot be deemed as a circumstantial evidence.

310. Concerning the existence of a Swiss bank account, the Sole Arbitrator refers to the ICC Case Westman ([1994] Rev. Arb. 359 at 367) in which it has been ruled that the fact that payment is to be made to a bank account outside the broker's country is not decisive, even less when it is a Swiss bank account since in Switzerland one must ascertain the beneficial owner of any account, numbered or not.

310. Moreover, [a witness] asserted that it was quite normal for a ... company [in Claimant's country] to have a Swiss bank account ...

311. Therefore, this element is not a decisive indication of bribery.

312. With respect to the Claimant's refusal to disclose information on its beneficial owner(s) and to produce banking documents, it is true that a party's refusal to allow the arbitral tribunal access to documentary evidence may lead the tribunal to draw an adverse inference (ICC Case No. 6497 (1999) XXIV Y.B. Com. Arb. 71; ICC Case No. 8891 (1998) J.D.I. - Clunet 4/2000, 1076).

313. As clearly evidenced by the leading publication of Matthias Scherer, it is not unusual in cases where corruption is alleged that a party is invited to disclose information about its ultimate beneficiary or to produce bank records of payments (Scherer, op. cit., p. 34). The possible conclusions to be drawn from the behaviour of a party who refuses to disclose the requested information during the taking of evidence are to be dealt with by the Sole Arbitrator when making his decision.

314. As it has been reminded, each party has a procedural duty to cooperate in the gathering and presentation of evidence as clearly provided by the Swiss Supreme Court (4A_ 2/2007, decision of 28 March 2007) and it cannot be disputed that the requested documents are not under the control of the Respondent.

315. In view of the Claimant's beneficial owner's reluctance to disclose his identity, the Sole Arbitrator offered the latter, in Procedural Order No. 3, a specific procedure of disclosure and attempted to protect the confidentiality of the requested information.

316. In sum, the Sole Arbitrator, did take great care of the Claimant's concerns regarding confidentiality.

317. The Claimant stated that it could not produce the requested documents and took the view that it could not provide details about the beneficial owner for tax reasons and since it could not exclude that this information could be illegitimately used or disclosed to third parties ...

318. The Sole Arbitrator regrets the lack of cooperation of the Claimant in the taking of evidence. Obviously, the Sole Arbitrator is not in a position to ascertain with a full degree of certainty whether the reasons relied upon by the Claimant for not accepting to provide information are the true and/or sole reasons.

319. However, the Sole Arbitrator is of the view that the reasons invoked by the Claimant are justified.

320. First of all, tax reasons are very often relied upon to justify a confidentiality concern. Secondly, an overall tax concern with respect to a Swiss bank account is even more justified today since the Swiss bank secrecy is no more as protected as it used to be. Of course, the Sole Arbitrator in Procedural Order No. 3 had adopted a preliminary mechanism which would, at least in a first stage, have guaranteed a certain level of confidentiality since the documents would have been available for consultation at his firm. However, the documents to be disclosed under such process could have revealed details about the Claimant's beneficial owner and the Claimant feared that such information could be illegitimately used or disclosed to third parties. The Sole Arbitrator is of the view that such reason cannot be considered as totally unjustified.

321. Therefore, the Sole Arbitrator finds that the Claimant's refusal to disclose the requested information cannot be characterized as a sufficient indication of bribery. The Sole Arbitrator also finds that the Claimant cannot be held to have failed to provide "satisfactory explanation" which might have led him to infer that such evidence would be adverse to its interests (Article 9 para. 4 of the IBA Rules on the Taking of Evidence in International Commercial Arbitration (version 1999) referred to in the Respondent's Post-Hearing Brief on p. 14 para. 501). The Sole Arbitrator is further of the view that in the context of allegations of bribery, an arbitral tribunal shall be particularly careful when applying such provision to draw adverse inference.'

1
The article of IBA Rules on the Taking of Evidence in International Commercial Arbitration (version 1999) referred to by the Respondent has the same content as the article 9 para. 5 of the new version dated 29 May 2010 of IBA Rules on the Taking of Evidence in International Arbitration.