Le Groupement Santullo Sericom Gabon v. Gabon

Case summary

At a glance

Parties: Groupement Santullo Sericom Gabon (Gabon) v. Gabonese Republic
Case no.: ICC Case No. 21403/MCP/DDA; Paris Court of Appeal RG 20/03242, judgment no. 40/2022
Forum and rules: ICC International Court of Arbitration; set-aside action before the Paris Court of Appeal (International Commercial Chamber, Pôle 5 – Chambre 16)
Treaty: None; contract arbitration over public works contracts
Court: Paris Court of Appeal: François Ancel (President), Laure Aldebert, Fabienne Schaller
Underlying award(s): Partial award of 21 March 2018 (jurisdiction); final award of 19 November 2019
Sector: Construction; public road and bridge works
Outcome: On 5 April 2022 the Court annulled the 19 November 2019 award. It found that giving effect to public contracts tainted by corruption violated international public policy.
Amount: Award annulled: XAF 90 billion in principal plus about XAF 11 billion in late-payment interest. Gabon was awarded EUR 80,000 under Article 700 CPC, plus costs (dépens).

The dispute

Groupement Santullo Sericom Gabon was a Gabonese public works company owned and run by Guido Santullo until his death in August 2018. Between 2010 and 2012 it entered into public works contracts with Gabon by direct award, without tender. Seven of them were in dispute: roads and bridges including Tchibanga–Mayumba, the Komo bridge at Kango, Akiéni–Onga and Mouila–Ndendé. Gabon was late in paying, so the Groupement began ICC arbitration on 12 October 2015 to recover the cost of the works and damages. The tribunal found that corruption in the award of the contracts had not been sufficiently proven. It ordered Gabon to pay XAF 90 billion in principal plus interest. Gabon then sought annulment under Article 1520 5° of the French Code of Civil Procedure. It argued that the award gave effect to contracts obtained by bribing officials, in particular Minister Magloire Ngambia. The Groupement answered that the corruption allegations were late, barred by estoppel, unproven, and an attempt to have the court review the merits.

Key holdings

Procedural objections rejected. Gabon's late exhibits, including exhibits 70–71 and 55–69 and the documents from the Gabonese criminal proceedings, were admitted because the Groupement had been able to answer them. The error in Gabon's address under Articles 960–961 CPC had been corrected. ¶¶ 21–38
In reviewing compliance with international public policy, the court asks whether recognising or enforcing the award would hinder the fight against corruption, as defined by the OECD and Mérida conventions. That review is not limited to the evidence put before the arbitrators. Nor is the court bound by their findings, but it must respect the adversarial principle and equality of arms. ¶¶ 72–79
The court did not rely on the criminal settlements in which Ngambia (12 May 2021) and Nkero Capito (22 November 2021) admitted guilt. Those admissions were obtained without trial or public hearing, in conditions that may have breached human dignity and the ban on torture. The court referred to UN Working Group Opinion No. 62/2019 on Ngambia's 44-month detention and to ECtHR case law. ¶¶ 80–89
Other red flags dating from before or at the time of the contracts were taken into account. Ngambia signed every contract. All were direct awards, priced 16% to 79% above comparable contracts according to the Gauff/Pinchon expert evidence. A financial-intelligence (ANIF) report showed unexplained cash deposits on Ngambia's accounts, some of which coincided with State payments to the Groupement. The Groupement made large cash withdrawals. Employees testified to cash handed to officials. Trips to Italy were paid for officials' families. ¶¶ 90–105
Evidence that arose after the award corroborated these indications. A Swiss federal prosecutor's order of 11 November 2021 kept a freeze on assets of Santullo's estate because suspicions of bribery of foreign public officials had grown stronger. ¶¶ 106–111
Together these indications were serious, precise and consistent enough to show that the conclusion and performance of the contracts were tainted by corruption. Recognising and enforcing the award in France would therefore clearly violate international public policy, and the award was annulled. ¶¶ 112–114
The Groupement's claim for abuse of process was rejected. It must pay EUR 80,000 under Article 700 CPC and the costs (dépens). ¶¶ 115–117; operative part

Procedural history

12 October 2015The Groupement files its ICC request for arbitration (Case No. 21403/MCP/DDA).
22 December 2016Terms of Reference signed.
21 March 2018Partial award: the tribunal accepts jurisdiction over contracts 1, 3, 4, 5, 8, 9 and 10.
19 November 2019Final award: corruption not proven; Gabon ordered to pay XAF 90 billion in principal plus interest of about XAF 11 billion.
12 February 2020Gabon files an action to set the award aside before the Paris Court of Appeal.
18 January 2022The court revokes the closing order and hears the case.
5 April 2022The Paris Court of Appeal annuls the award as contrary to international public policy (corruption).