## Facts

- A French company (OTV) retained an English company (Hilmarton) to help secure a public drainage contract in Algiers and provide related advice, for a success fee tied to the contract value.
- The agreement was governed by Swiss law and contained an ICC arbitration clause with Geneva as the seat.
- Algerian law prohibited use of “middlemen” in negotiations for certain government contracts; the parties knew Hilmarton’s contemplated intermediary role would breach that statute.
- A fee dispute arose after OTV obtained the Algerian contract; Hilmarton commenced ICC arbitration in Geneva.
- The sole arbitrator held for Hilmarton, finding the Algerian statute was breached but finding no bribery or corruption and concluding enforcement was not contrary to Swiss public policy.
- Hilmarton obtained an ex parte English order granting leave to enforce the Swiss award as a judgment under the Arbitration Act 1996 (New York Convention framework).
- OTV applied inter partes to set aside the enforcement order and to resist recognition/enforcement under Arbitration Act 1996 § 103.

## Issues

1. Whether enforcement should be refused as contrary to public policy under Arbitration Act 1996 § 103(3) because the underlying contract involved conduct unlawful in Algeria, despite the arbitral finding of no corruption.
2. Whether enforcement should be refused under § 103(2)(c) because OTV was “otherwise unable to present [its] case” in the arbitration.
3. Whether enforcement should be refused under § 103(2)(e) because the arbitration procedure was not in accordance with the parties’ agreement and/or ICC rules.

## Decision

- The court dismissed OTV’s application and maintained leave to enforce the award.
- Enforcement was not contrary to English public policy under § 103(3), given the express arbitral finding of no corrupt practice and the contract’s consistency with the proper and curial law (Swiss law).
- OTV failed to establish a denial of a reasonable opportunity to present its case under § 103(2)(c).
- OTV failed to establish a serious procedural departure from the agreed procedure or ICC rules under § 103(2)(e).
- In obiter, the court stated that an applicant seeking ex parte enforcement owes the ordinary duty of full and frank disclosure.

## Legal Principles

- The public policy exception in Arbitration Act 1996 § 103(3) (New York Convention art. V(2)(b)) is narrowly applied and does not permit rehearing the merits of the dispute.
- Where the tribunal at a foreign seat has addressed alleged illegality and expressly found no corruption, English courts will generally be slow to revisit the matter under the public policy label, even if English law might assess the underlying illegality differently.
- Refusal for inability to present a case under § 103(2)(c) requires a serious failure of procedural fairness; disagreement with the tribunal’s evaluation of evidence or law is insufficient.
- Refusal for nonconformity with agreed procedure under § 103(2)(e) requires a material, established departure; minor or unproven irregularities do not justify non-enforcement.
- Ex parte enforcement applications require full and frank disclosure of matters material to potential opposition.

## Conclusion

The High Court enforced a Swiss ICC award notwithstanding a breach of Algerian regulatory law, holding that § 103 defenses were not made out because the tribunal had examined the illegality allegations, found no corruption, and the asserted procedural objections did not meet the high statutory thresholds for refusing recognition or enforcement.


Omnium de Traitement et de Valorisation S.A. v. Hilmarton Ltd., [1999] 2 Lloyd’s Rep. 222 (Q.B. 1999)