This is an appeal against the judgment of Waksman J ("the Judge") dated 30 July 2020 ("the Judgment") whereby he dismissed the application of the Appellants (together "the Privinvest companies") for a stay pursuant to s. 9 of the Arbitration Act 1996 ("s. 9") ("the 1996 Act") of the proceedings brought against them by the Respondent, the Republic of Mozambique ("the Republic"). The Judge did so on the basis that, on a proper construction and applying Swiss law, none of the Republic's pleaded claims against the Privinvest companies fell within the scope of three arbitration agreements (together "the Arbitration Agreements").
Three corporate vehicles wholly owned by the Republic ("the SPVs") entered into three Supply Contracts with three of the Privinvest companies ("the Supply Contracts") by which the SPVs acquired valuable goods and services in connection with the Republic's development of its Exclusive Economic Zone ("EEZ"). The SPVs borrowed the purchase funds from the First and Second Defendants, Credit Suisse International and Credit Suisse AG (together "Credit Suisse"), and a third bank, VTB Capital plc ("VTB"). In turn, the Republic gave sovereign guarantees over that borrowing ("the Guarantees").
The Republic claims that it has been the victim of a conspiracy involving the various named Defendants. It brings claims for deceit, bribery, conspiracy to injure by unlawful means, dishonest assistance, knowing receipt and also makes proprietary claims. The Republic accuses the Privinvest companies (and their ultimate owner and controller, now the Twelfth Defendant (Mr Iskandar Safa ("Mr Safa")), of paying very significant bribes to its corrupt officials, exposing the Republic to a potential liability of some US$2 billion under the Guarantees.
The Supply Contracts are governed by Swiss law and contain the Arbitration Agreements which are in favour of arbitration under the rules of the International Chamber of Commerce ("the ICC") or the rules of the Swiss Chambers' Arbitration Institution ("the SCAI"). Although the Republic is not a signatory to the Supply Contracts, the Privinvest companies contend that, as a matter of Swiss law, it was a party to them, and that the Republic's claims in these proceedings fall within the scope of the Arbitration Agreements. The Judge rejected that latter contention, resolving it as a preliminary issue in favour of the Republic (on the assumption that the Republic was a party to the Arbitration Agreements).
For these reasons, I would allow the appeal. The Republic's claims against the Privinvest companies fall within the scope of the Arbitration Agreements. Whether or not the Republic is in fact a party to the Arbitration Agreements and whether or not Judgment Approved by the court for handing down.
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