## Facts

- An English company (consultant/intermediary) and a French contractor entered a “Protocol of Agreement” tied to a major Algerian public works tender.
- The consultant agreed to provide legal and fiscal advice, coordinate subcontractors, and assist the contractor in obtaining the Algerian contract.
- The contractor promised a commission calculated as a percentage of the public contract value if the contractor won the tender.
- The contract contained an ICC arbitration clause and a Swiss choice-of-law clause; performance was connected to Algeria.
- The contractor obtained the Algerian contract, paid roughly half the commission, and withheld the remainder, alleging defective performance and illegality.
- In an earlier ICC award, the claim for the unpaid commission was denied on illegality/public-policy grounds; Swiss courts later annulled that award.
- The ICC proceedings continued before a new sole arbitrator, resulting in a second final award granting the consultant’s claim for the unpaid commission.

## Issues

1. Whether the intermediary agreement was unenforceable under Swiss substantive law because of Algerian mandatory rules governing public-sector intermediation.
2. Whether the consultant’s alleged conduct amounted to bribery or corruption sufficient to render the agreement void or unenforceable as contrary to Swiss international public policy (ordre public).
3. If the agreement was enforceable, whether the consultant sufficiently performed to earn the remaining commission.

## Decision

- The tribunal applied Swiss law as the governing law of the contract while considering the relevance of Algerian regulations as part of the illegality/public-policy analysis.
- The tribunal held that enforcement of the commission agreement did not violate Swiss international public policy.
- The tribunal found the evidentiary record insufficient to establish bribery of Algerian decisionmakers at a level requiring non-enforcement under Swiss ordre public.
- The tribunal determined the consultant’s services contributed to obtaining the Algerian contract and that the consultant was entitled to the unpaid portion of the commission (with related monetary adjustments not fully reproduced in public extracts).
- The tribunal rejected the contractor’s attempt to avoid payment based on asserted illegality and corruption defenses.

## Legal Principles

- A contractual choice of Swiss law is generally respected in arbitration, but the tribunal may consider mandatory rules at the place of performance when assessing illegality and public policy.
- Swiss international public policy bars enforcement where the transaction is shown, on the facts, to be seriously tainted by corruption or comparable illegality; general allegations or suspicion are not enough.
- Bribery allegations must be supported by a sufficient factual basis; absent proof of corrupt payments or improper advantages meeting the relevant standard, the contract is not denied enforcement on ordre public grounds.
- Foreign statutory restrictions on intermediaries in public procurement do not automatically render a Swiss-law commission agreement unenforceable; the tribunal assesses whether enforcement would offend Swiss ordre public in the circumstances.
- Where the intermediary materially performs the agreed services and the principal obtains the targeted contract, the intermediary may recover the agreed commission absent a proven defense to enforceability.

## Conclusion

The tribunal enforced a Swiss-law intermediary commission agreement connected to an Algerian public works contract, concluding that Algerian restrictions and alleged corruption did not, on the evidence, establish a Swiss public-policy bar, and awarding the consultant the remaining unpaid commission based on performance.


Final Award in ICC Case No. 5622, XIX Y.B. Comm. Arb. 105 (1994)