Alexander Brothers Ltd Hong Kong SAR v Alstom Transport SA and Anor 2020 EWHC 1584 Comm - 18 June 2020
This is the application of the Defendants ("Alstom") to set aside the without notice Order of Teare J enforcing an arbitration award ("the Award") in favour of the Claimant ("ABL") on the basis that it was contrary to public policy; alternatively for a trial of the public policy issue.
The Award orders Alstom to make payments under certain consultancy agreements, by which ABL was to and did assist Alstom in obtaining government railway contracts in China.
Alstom relies on two grounds. First, although this was not the major issue in the submissions before me, it submits that there was a failure to make full and frank disclosure on the without notice application.
Secondly, and in reality its primary case, Alstom says that the public policy ground under section 103(3) Arbitration Act 1996 is engaged. In essence, it contends that the underlying consultancy agreements are tainted by illegality in ABL's performance. Alstom places considerable reliance on the fact that enforcement in France has already been refused by the Paris Cour d'Appel, which held in May 2019 that there were "serious, precise and consistent indicia" that payments made to ABL by Alstom under the consultancy agreements had been used to bribe Chinese government officials and that the sums held to be due under the Award were "intended to finance or remunerate acts of bribery".
One central issue before me is the extent to which this argument is available to Alstom in the light of the fact that there is a crossover between the public policy argument and the documents in play and submissions made in the arbitration. ABL contends that the Tribunal had this argument before it and rejected it; and that on the authorities this means that I am bound to reject Alstom's argument.
There is also a dispute as to whether any issue estoppel arises out of the decision of the Cour D'Appel.