Surpass Commercial v. Bariven
ICC · Investment (ICSID and treaty) · Netherlands · 27 May 2019
Why it matters
This ICC award illustrates how tribunals handle allegations of corruption in commercial arbitration. The tribunal rejected Bariven's defense that purchase orders were procured through bribery, applying a strict evidentiary standard. It also confirmed that multiple purchase orders with identical arbitration clauses can be consolidated into a single arbitration under Article 9 of the ICC Rules, even without explicit party agreement, provided there is no objection. The case is a useful reference on the burden of proof for corruption claims and on consolidation of claims.
Summary
Surpass Commercial Corp. Ltd., a Chinese company, supplied commercial vehicles and equipment to Bariven S.A., a Venezuelan state-owned entity, under 29 purchase orders governed by Dutch law and containing ICC arbitration clauses. Bariven refused to pay outstanding invoices totaling over USD 63 million, alleging that the purchase orders were procured through corruption and that Surpass had engaged in bribery. Bariven also counterclaimed for damages on purchase orders it had already paid. The tribunal first confirmed its jurisdiction over all 29 purchase orders, rejecting Bariven's argument that each order required a separate arbitration. It held that Article 9 of the ICC Rules allows consolidation when claims arise from multiple contracts with compatible arbitration agreements and no party objects. On the merits, the tribunal found no credible evidence of corruption. Bariven's key evidence was a forged letter purportedly from a Venezuelan official, which Surpass proved was a forgery. The tribunal held that the purchase orders were valid and binding, and that Bariven was obligated to pay the full purchase price for goods delivered and accepted. It rejected Bariven's counterclaims, including claims for damages and reimbursement of advance payments. The tribunal awarded Surpass USD 47,896,567.54 in principal, plus statutory commercial interest under Dutch law from various due dates, and ordered Bariven to pay Surpass's arbitration costs (EUR 305,822.00) and legal fees (USD 325,000.00, EUR 1,093,083.75, GBP 3,953.46). Surpass's claim for storage costs for undelivered trucks was denied. The award is final and binding.
The detail
Parties: Surpass Commercial v. Bariven
Case number: ICC Case No. 22423/FS
Outcome: Surpass won: Bariven ordered to pay USD 47,896,567.54 plus interest and costs; Bariven's counterclaims dismissed.
Quantum: USD 47,896,567.54
Applicable law: ICC Rules (2012); Dutch law; CISG; PDVSA Terms and Conditions (2009 and 2014)
Issues in play: Dutch contract law and CISG governed the validity of purchase orders and payment obligations; Bariven's corruption defense (alleging bribery) was rejected for lack of evidence.
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