In that case, an Isle of Man company had brought a US$500 million claim against the Republic of Kenya for an alleged expropriation of a contract to operate duty free concessions at Kenya’s two international airports in Nairobi and Mombassa. Following the submission of the Claimant’s Statement of Claim, however, evidence emerged that the concession contract had itself been procured through the payment of a cash bribe to the former President of Kenya, Daniel Arap Moi.
Within days of this evidence emerging, we filed an application unprecedented in ICSID arbitration to have the claim dismissed in limine litis because it arose under a contract that was illegal and unenforceable as a matter of law and public policy. As a result of our application, an eminent arbitral tribunal chaired by Gilbert Guillaume, the former President of the International Court of Justice, suspended its hearing of the merits, and convened a hearing in The Hague to hear ground-breaking legal argument on the effect of a payment of a cash bribe to a then-sitting Head of State.
In an award that stands as a landmark judgment on the effects of corruption on international claims, the Arbitral Tribunal dismissed all claims against our client entirely, finding that a contract procured by a bribe was void as a matter of law, and that the machinery of international justice was not available to a claimant that had participated in such an illegality as a matter of international public policy.