Revision of an International Arbitral Award due to Subsequently Discovered Facts and Evidence

Facts

[A.] SE, a German company offering diesel engines worldwide, had concluded an agreement with [B.] , Inc., a Panamanian company, on March 25, 2005, regarding the provision of consulting services for potential deliveries of diesel power plants and other facilities to the state-owned operating company [D.] in [V.] . [B.] , Inc. was to provide [A.] SE with all necessary information and useful advice to obtain the desired large-scale project in [V.] , in exchange for a commission of 2% of the transaction amount.

The agreement contains an arbitration clause in favor of an arbitral tribunal with its seat in Geneva and is subject to Swiss law. On February 7, 2006, the agreement was extended until December 31, 2007.

Between July 2005 and October 2007, [A.] SE concluded eleven contracts for the delivery of diesel engines and aggregates with [E.] , a state-owned company responsible for importing all facilities in the field of power supply and closely related to [D.] . The contracts had a total order volume of far more than EUR 100 million and were subsequently fulfilled.

[B.] , Inc. claimed that, based on the agreement of March 25, 2005, it was entitled to compensation of EUR 2,746,468; after a partial payment of EUR 1,579,297.36 by June 2007, [A.] SE still owed the outstanding amount of EUR 1,167,171. The latter refused to pay.

[B.] , Inc. initiated arbitral proceedings against [A.] SE on January 29, 2009, in accordance with the rules of the International Chamber of Commerce (ICC). It requested, among other things, that [A.] SE be ordered to pay the outstanding compensation of EUR 1,167,171, plus interest at 5% since April 29, 2007.

The arbitral tribunal found the allegation of bribery to be unproven and considered the agreement of March 25, 2005, to be valid. By arbitral award of February 15, 2011, it partially upheld the claim and ordered [A.] SE to pay outstanding commissions in the amount of EUR 957,654.08, plus interest at 5% since the opening of the proceedings.

On July 1, 2016, [A.] SE requested the Federal Supreme Court to revise the ICC arbitral award of February 15, 2011, citing newly discovered facts and evidence.

Considerations

The Federal Supreme Court must examine whether the requirements for revising the arbitral award are met. According to Art. 123 para. 1 FSCA, revision can be requested if criminal proceedings have revealed that a crime or offense influenced the decision to the detriment of a party. According to Art. 123 para. 2 lit. a FSCA, revision can also be requested if the requesting party subsequently discovers significant facts or finds decisive evidence that it could not present in the previous proceedings.

[A.] SE primarily relies on the fact that, in the context of criminal proceedings against a former employee, it subsequently discovered significant facts or found decisive evidence in the form of the attached Form A of the account opening documents regarding the account No. xxx of [B.] , Inc. at Bank [Z. AG] .

The Federal Supreme Court has…