Getma International and others v. Republic of Guinea [II]
ICSID · Investment (ICSID and treaty) · Guinea · 16 Aug 2016
Why it matters
This award is a landmark ICSID decision on the consequences of corruption in investment arbitration. The Tribunal held that an investment obtained through corruption is not protected under the Guinea Investment Code, as it violates fundamental principles of international public policy. The case clarifies that corruption taints the investment from inception, depriving the tribunal of jurisdiction ratione materiae. It also addresses the interplay between parallel proceedings (ICSID and OHADA CCJA) and the effect of annulment of a related award.
Summary
The dispute arose from a concession agreement for the container terminal at the Port of Conakry, signed in 2008 between Guinea and Getma International. In 2011, Guinea terminated the concession and requisitioned the assets, citing Getma's failure to pay entry fees and other breaches. Getma and related entities initiated ICSID arbitration under the Guinea Investment Code, claiming expropriation and unfair treatment. Meanwhile, Getma also pursued arbitration under the OHADA CCJA based on the contract, which resulted in an award in Getma's favor in 2014. However, the CCJA annulled that award in 2015 due to procedural irregularities regarding arbitrator fees. In the ICSID proceedings, Guinea argued that the investment was illegal because Getma had obtained the concession through corruption, specifically by paying bribes to Guinean officials. The Tribunal agreed, finding that Getma had made corrupt payments to secure the concession, which violated Guinea's anti-corruption laws and international public policy. Consequently, the Tribunal held that the investment was not protected under the Investment Code, and it lacked jurisdiction ratione materiae. The Tribunal also rejected Getma's arguments that the annulment of the CCJA award revived their contract claims, as the corruption defense was independent. The award was rendered on 16 August 2016, dismissing all claims and ordering each party to bear its own costs.
The detail
Parties: Getma International and others v. Republic of Guinea [II]
Case number: ICSID Case No. ARB/11/29
Outcome: The Tribunal dismissed all claims. It found that the investment was illegal due to corruption in obtaining the concession, and therefore lacked jurisdiction ratione materiae. No damages were awarded.
Applicable law: Guinea Investment Code (1987, amended 1995); ICSID Convention; OHADA Uniform Act on Arbitration; Concession Agreement of 22 September 2008
Issues in play: The case involved a conflict between the legality requirement under the Guinea Investment Code and the alleged corruption in obtaining the concession. The Tribunal had to determine whether an investment procured through corruption could benefit from treaty protection.
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