Paris Court of Appeal, Pole 1 - First Chamber, 28 May 2019, No. 16/11182

ALSTOM NETWORK UK LTD , SA ALSTOM TRANSPORT SA vs. ALEXANDER BROTHERS LTD

The French company ALSTOM Transport SA and the English company ALSTOM Network U.K Ltd. (ALSTOM) concluded three consultancy contracts with Alexander Brothers Ltd (ALEXANDER BROTHERS), a company incorporated under the law of the administrative region of […] (People’s Republic of China), to assist them in the submission of tenders for the supply of railway equipment in China. The first two contracts, dated 26 August and 22 December 2004, related to calls for tenders by the Ministry of Transport for the supply of heavy freight electric locomotives and high-speed passenger trains. The third, concluded on 2 December 2009, concerned a tender by K Shengton Holding Group for the supply of rolling stock for the extension of the K metro.

ALSTOM Transport SA was awarded these three contracts. It paid the first instalments under Contracts Nos.1 and 2 in February 2006 and November 2008 but did not pay the balance and did not make any payments in respect of Contract No. 3.

On 20 December 2013, ALEXANDER BROTHERS filed a request for arbitration with the International Chamber of Commerce on the basis of the arbitration clauses in the three contracts, which provided for arbitration in Geneva with application of Swiss law to the merits of the dispute. ALEXANDER BROTHERS claimed the balance of its invoices, i.e. EUR 2,975,480 in principal, plus interest, as well as EUR 1,500,000 as damages for the prejudice caused by B’s improper behaviour and continuous audits and EUR 1,000,000 as punitive damages.

In an award issued on 29 January 2016, the arbitral tribunal composed of Messrs. X and Schimmel, arbitrators, and Mr. Y, chairman, ordered the two ALSTOM companies to pay ALEXANDER BROTHERS the principal sum of EUR 932,800 under Contract No. 1 and EUR 624,440 under Contract No. 2, in addition to interest, part of the arbitration costs and the opposing party’s legal fees, and dismissed the remainder of the claims.

The ALSTOM companies brought an action for annulment of the award before the Lausanne Federal Court, which was dismissed on 3 November 2016.

On 18 May 2016, they appealed against the order of the President (the judge) of the Paris Tribunal de Grande Instance of 30 March 2016, which granted enforcement (in French: Exequatur) of the award. They claimed a violation of due process (in French: Principe de contradiction) as well as a violation of international public policy.

On this second ground, the ALSTOM companies (hereinafter collectively ALSTOM) argued that the award ordering them to pay the balance of the remuneration in breach of the rules of ethics and compliance stipulated in the contract to prevent corrupt practices in international trade violated international public policy, irrespective of the fact that corrupt practices had not been proven.

In a judgment of 10 April 2018, this court ordered the production of various documents by ALSTOM on a penalty payment basis and invited the parties to conclude on the existence of a bribery contract.

In its submissions notified on 4 September 2018, ALSTOM requested the reversal of the enforcement order (in French: Ordonnance d’exequatur) of 19 May 2016, the dismissal of the application for enforcement of the sentence of 29 January 2016, the order for ALEXANDER BROTHERS to pay the sum of EUR 1,828,850.88 seized by an attachment order issued on 22 April 2016, and finally the order for ALEXANDER BROTHERS to pay the sum of EUR 30,000 pursuant to Article 700 of Civil Procedure Code. It includes the grounds of breach of due diligence (in French: Principe de contradiction) and a violation of international public policy.

By submissions notified on 22 November 2018, ALEXANDER BROTHERS requested the court to dismiss the ALSTOM companies from their appeal, to uphold the order made, to dismiss all of the claimants' requests and to order them in solidum to pay EUR 50,000 in damages for abuse of process and the same sum under Article 700 of the Code of Civil Procedure. It submits that both grounds for dismissal are unfounded.

UPON WHICH

On the ground of violation of international public policy (Articles 1525 and 1520-5 of the Code of Civil Procedure):

ALSTOM argues, firstly, that the introduction into its contracts of rules resulting from its ethics and compliance programme does not meet an objective of private interest but a public interest of prevention of corruption in international trade. ALSTOM also argues that an order to pay remuneration to the consultant despite the insufficiency of material evidence of services rendered as required by these compliance rules is, in itself, contrary to the objective of preventing corruption and, consequently, to international public policy. Finally, ALSTOM asserts that the award finds that partial settlements had initially been made on the basis of unsubstantial evidence, from which it was inferred that the parties had a common intention to depart from the ethics and compliance policy. Thus, ALSTOM alleges that the award is contrary to international public policy since the implicit agreement is itself void as having an unlawful object, namely the circumvention of the rules on the prevention of corruption.

Secondly, ALSTOM submits that, in the light of the criteria set out by the Court in its judgment of 10 April 2018, there are serious, precise and consistent indications that make it likely that ALEXANDER BROTHERS, without its knowledge, used corrupt practices by Chinese public decision-makers. In particular, it claims:

that the documents supporting the claims are very succinct or are a simple reproduction of technical documents provided by ALSTOM or translations or summaries of Chinese documents without any comment,
that the services relating to these documentsare not in line with the remuneration claimed,
that ALEXANDER BROTHERS provided them with documents from the other bidders, which according to Chinese law were confidential, without their origin being known,
it is not demonstrated that ALEXANDER BROTHERS has employed persons other than Ms C G, nor that it has had any business premises other than the latter’s home,
that the accounting is irregular, with operating expenses being made using the shareholders' personal bank cards and not giving rise to any invoices,
that the audit disclosed the payment by ALEXANDER BROTHERS of an amount of EUR 280,589 to a company Z as a consultant without any justification of services and while Z was the contracting authority’s importing agent,
that no explanation was given for the awarding of the contract to ALSTOM when its bid was rated lower than that of its competitors,
that sentences for corruption were issued in China against the Minister of Railways and a Deputy Chief Engineer of the Ministry of Railways at the time of the tenders.
finally, that it had to admit before the US judicial authorities that it had engaged in corrupt practices of public officials in other countries.

A replies, in essence:

that the matter of the contracts, as it results from their stipulations, is lawful and expressly provides for the prohibition of corrupt practices,
as regards the effects of the contracts, the ALSTOM companies, without ever asserting that identified acts of corruption had actually been committed, confine themselves to making insinuations which do not enable the other parties to defend themselves usefully,
that, the very numerous documents submitted to the discussions demonstrate that the services actually provided were effective, it being noted that there were long-standing relations between the parties, which were more likely to be established by telephone than by e-mail, that the first payments were made without difficulty, ALEXANDER BROTHERS concluded that its supporting documents were satisfactory,
that the material and human resources used were sufficient,
that the remuneration is proportioned to the diligence carried out,
that a document from a competitor released by ALEXANDER BROTHERS, which ALSTOM companies claim is confidential, was in fact disclosed at a conference open to the public, and that, moreover, the bidding process in China is an ‘iterative process’ in which the government interacts with the various bidders in order to compete and obtain the best offer,
that the criterion based on the setting of a percentage remuneration is inoperative,
that its accounting records are complete and accurate,
that the Chinese Government launched a comprehensive anti-corruption programme from 2000 onwards, and that neither ALEXANDER BROTHERS nor ALSTOM companies were concerned.
that by virtue of the adage ‘Nemo auditor’, ALSTOM cannot claim to be familiar with corrupt practices.

On the first part of the ground:

The enforcement judge is not the judge of the contract but of the insertion of the award in the national legal order. The purpose of its review is therefore not to check that contractual stipulations - including the rules of compliance - have been properly performed, but only to ensure that the recognition or enforcement of the award does not result in a manifest, effective and concrete violation of international public policy. In the present case, the award does not order the payment of sums intended for the financing or remuneration of a corrupt or influence-trafficking activity.

Consequently, the first part of the ground of appeal, which alleges that the award violates international public policy in that it orders ALSTOM to pay the price of the contract when the contractual provisions for the prevention of corruption had not been complied with, because the arbitrators held that the failure to comply with those rules was the result of a common agreement between the parties, cannot justify the reversal of the enforcement order (in French: Ordonnance d’exequatur).

On the second part of the ground:

The prohibition of the bribery of foreign public officials is one of the principles of the French legal order that cannot be violated even in an international context. It is therefore a matter of international public policy.

The fight against bribery is the purpose of the OECD Convention on Combating Bribery of 17 December 1997, which came into force on 15 February 1999, and of the United Nations Convention against Corruption done at Merida on 9 December 2003, which came into force on 14 December 2005.

According to the international consensus expressed in these texts, bribery of foreign public officials consists in offering them, directly or indirectly, any undue advantage to any of its public officials, for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions, in order to obtain or retain a contract or other undue advantage connected to international trade activities.

While both the French Republic and the People’s Republic of China have criminal offences of corruption, it is not the task of this court, when hearing an appeal against an order for the enforcement of an international award, to determine whether a party to the arbitration may be found guilty of a corruption offence under the criminal provisions of a national legal system, but only to investigate whether the recognition or enforcement of the award disregards the anti-corruption objective in that the effect of such an award would be to finance or remunerate a corrupt or trading in influence activity. In this respect, the possible bad faith of the debtor party is irrelevant, as long as the only issue at stake is the refusal of the French legal system to provide legal assistance for the payment of sums for an illicit reason.

The present proceedings do not aim to pronounce criminal sentences, so the defendant cannot usefully argue that it would not have been in a position to reply to the accusation of having committed, in specific places and on specific dates, acts of corruption of one or more precisely identified public officials.

The review by the enforcement judge of the allegation that an arbitral award would award sums intended to finance a corrupt activity can, in view of the covert nature of the acts of corruption, only involve the collection of a body of evidence. The exercise of the rights of the defence in the present case depends on the admissibility, under the rules of civil procedure, of the evidence submitted by the appellant, on the reality of the evidence and on its sufficiently serious, precise and corroborative nature, and not on precisely identified acts of corruption.

In the present case, the following facts are considered to be established by the award and are not challenged by the parties:

in 2003 a contact was concluded between the managers of ALSTOM Transport and Ms. G C, director of ALEXANDER BROTHERS and former employee of ALSTOM Group in China (Award, § 180),
A was chosen after an audit procedure, described in paragraphs 186-189 of the award, because ALSTOM considered that ‘it was close to the decision-makers and was aware of the decision-making process within the Chinese Ministry of Railways’ (award, § 181),
Consultancy Contract No. 1 of 26 August 2004 (heavy freight locomotives) set a remuneration of 1% of the total contract amount, i.e. €3,731,200.00, Contract No. 2 of 22 December 2004 (high-speed passenger trains) set a remuneration of 0.5% of the total contract amount, i.e. €3,122,000.00 and Contract No. 3 of 2 December 2009 (line 2 of the K metro) set a remuneration of 2% of the total contract amount, i.e. €672,000.00,
The three contracts provided for payment in four instalments: the first on the date of entry into force of the contract and on receipt of the advance payment by the client, the second on payment by the client of 40 % of the contract amount, the third when 70 % of the contract amount had been paid and the fourth and final instalment when the client had paid the market price in full and released ALSTOM from all his contractual obligations (Award, § 193),
it is not disputed that it was due to ALEXANDER BROTHERS’s efforts and services that the contracts were awarded to ALSTOM (Award, § 191). Moreover, ALSTOM paid 55% of the amount for contract No. 1 and 80% of the amount for Contract No. 2 in two payments made on 10 February 2006 and 17 November 2008.
however, on 26 November 2010, ALSTOM companies announced that they were not currently in a position to make any further payments, not because they would not have been satisfied by services provided or evidence produced but because an investigation was under way in the United Kingdom and payment would expose them to criminal sanctions (sentence § 208).
In August 2012 and June 2013, ALSTOM companies audited ALEXANDER BROTHERS and refused to pay the balance of the invoices for Contracts Nos. 1 and 2, as well as the entire Contract No. 3. They claimed the criminal risk they incurred by paying sums which might have been used to bribe public officials and claimed ALEXANDER BROTHERS that failed to comply with its obligations under the rules of ethics and compliance, and in particular that it had insufficient material evidence to justify the consultant’s diligence.

The arbitral tribunal, seized by ALEXANDER BROTHERS, ordered ALSTOM to pay the balance of the sums due under Contracts Nos.1 and 2, and dismissed the claim under Contract No.3.

The reasoning of the arbitral tribunal:

The arbitral tribunal developed the following reasoning:

‘Since the parties have agreed that the three consultancy contracts shall be governed by Swiss law, the general legality of the three contracts under Swiss law must be determined. From a legal point of view, the contracts concluded between the parties are not unlawful in themselves.

None of the parties claimed that the parties intended the Claimant to actually commit acts of corruption or exercise any other form of improper influence on potential clients in order to obtain contracts. The consultant contracts were therefore not entered into for unlawful purposes.

It was not claimed in this arbitration that the three consultant contracts were obtained through bribery.

In the present case, the Defendants claim they are concerned that the Claimant may have engaged in corrupt practices in the performance of the consultant contracts and that they may therefore be subject to criminal prosecution if they were to make outstanding payments under these contracts'. (Award, §§ 261-263).

First, with respect to ALSTOM companies' allegation that a payment would be likely to be interpreted by certain state authorities as remuneration for corrupt practices, the arbitrators note that ALEXANDER BROTHERS: “was specifically appointed as a consultant because of its contacts with senior members of government and [ALSTOM companies] expected it to use these contacts to secure the projects. While contracts of this type are prohibited as such in some countries where it is considered that they are generally intended to conceal corrupt practices, other countries such as Switzerland avoid a general prohibition of such contracts but require proof that the parties had a genuine intention that the agent or consultant would pay bribes or otherwise exert undue influence on public officials.” (Award, § 258).

The arbitral tribunal notes that this burden of proof lies with the ALSTOM companies. In the present case it is not established that the Serious Fraud Office of the United Kingdom or any other state authority investigated the contracts at issue, or even the activities of group ALSTOM in China (Award, § 265). The arbitrators add that while the standard of proof may be lowered in relation to the bribery allegation, given the difficulty of establishing such facts, there was no need for ALSTOM to benefit from these facilities since ALEXANDER BROTHERS did not seek to conceal its activities and agreed to the two audits that would have enabled ALSTOM to find possible evidence of bribery. In these circumstances, there was no need to reduce the burden of proof. Moreover, ALSTOM companies did not allege that ALEXANDER BROTHERS had indeed paid bribes. They merely stated that they did not understand how ALEXANDER BROTHERS came into possession of documents containing potentially confidential information, or how it persuaded K’s municipality to award it the contract for metro line No. 2 when its bid scored lower than that of its competitors. The arbitrators concluded that ‘it is not, however, alleged that there was any corruption or other criminal behaviour, and even less conclusively proven that there was any illegal activity’. (Award, § 266-275)

Secondly, on the allegation of breach by ALEXANDER BROTHERS of its contractual obligations, the arbitrators noted that the evidence of ALEXANDER BROTHERS’s performance of services was always presented in the same form and in the same detail and that ALSTOM companies were satisfied with it and settled the payments due without requiring further evidence until they became the subject of criminal proceedings unrelated to ALEXANDER BROTHERS’s activities (Award, § 281-283). The arbitral tribunal stated that under Swiss law, ‘where the subsequent conduct of the parties is contrary to the terms of a contract between them, such conduct shall be deemed to be an implied subsequent modification of that contract’ (Award, § 305). Thus, ALSTOM companies made no comment on the evidence of performance of services under contracts 1 and 2 and made payments on the basis of such performance (Award, § 306). Therefore, the evidence provided by the consultant was to be regarded as satisfying the requirements of Contracts Nos. 1 and 2, so that ALSTOM companies were to be ordered to pay the balance. However, ALEXANDER BROTHERS could not presume that the common practices adopted in respect of the first two contracts also applied to the third, even though the latter was drafted in much more rigorous terms and, before its conclusion, it had been required to provide reports on its activities in preparing the submissions for the project in question (Award, § 308 and 309). The arbitrators note that the documents produced as evidence of services for the K underground line 2 project included a total of eight letters and five e-mails from Ms C G to ALSTOM. No other documents, minutes of meetings or actual activity reports had been attached (Award, § 310). The arbitral tribunal concluded that ALEXANDER BROTHERS had not fulfilled its obligations under Contract No. 3 and that its claim on this ground was therefore not admissible.

Before the court, after the reopening of the discussions, ALSTOM no longer confined itself to allege breaches of the contractual provisions on ethics and compliance, nor the fact that it was afraid of exposing itself to criminal sanctions by paying ALEXANDER BROTHERS if, by some extraordinary measure, ALEXANDER BROTHERS had resorted to unlawful practices. It now asserts that in the present case there was ‘the use by Alexander Brothers of the remuneration paid or expected to be paid by ALSTOM companies under the Consultancy Contracts for the payment or promise of bribes to Chinese officials, without the knowledge of ALSTOM companies and in order to facilitate the award of contracts under the relevant invitations to tender’ (ALSTOM Conclusion No. 4, p. 48). It claims that there is a body of evidence of such practices on the part of Alexander Brothers.

The consultant’s contract No. 1:

On 26 August 2004, the two ALSTOM companies entered into a consultancy contract with company ALEXANDER BROTHERS in order to respond to the invitation to tender issued by the Chinese Ministry of Transport for the supply of heavy freight electric locomotives.

The contract required ALEXANDER BROTHERS to provide information and advice on all aspects of the project, establish contacts at all levels, arrange meetings, provide assistance in obtaining any authorisations, assist ALSTOM in the preparation of the documents necessary to obtain the contract, in the financial, commercial and legal fields, provide advice on possible sub-contractors, assist ALSTOM during the implementation of the project.

Article 7.1 prohibited the Consultant from employing government officials or members of parliament, or members of political parties or candidates in elections, and Article 7.3 (iii) prohibited the Consultant from promising or granting benefits to these same persons in connection with the performance of its services.

The contract provided for a total remuneration of 1% of the contract, or EUR 3,731,200.00.

It stipulated a first partial payment (30%) on the date of entry into force of the contract and receipt of the first advance payment from the Chinese client.

ALSTOM paid in full the first instalment of EUR 1,119,360.00 (30% of the total fee) on 10 February 2006, in view of the file provided by ALEXANDER BROTHERS in support of its invoice.

ALSTOM produced this file as Exhibit No. 62-1, claiming:

that these documents do not establish the reality of the services issued by ALEXANDER BROTHERS,
that the origin of some of them is doubtful,
that the remuneration paid is disproportionate to the due diligence to which they attest.

A does not claim that B’s Exhibit No. 62-1 does not correspond to the entire file which it provided in support of its first invoice, but claims that the documents in question are accurate and probative, that they refer to verifiable facts and that their origin can be established with certainty.

Exhibit 62-1 of ALSTOM contains 22 notes written by Ms. C G between 5 November 2003 and 24 May 2005, in just under 19 months, addressed to Mr. N O (senior vice-president of ALSTOM Transportation in China during that period).

These notes are succinct: always less than one page and, for twelve of them, one to four sentences.

The notes of 5 November 2003 (Exhibit ALSTOM) No. 62-1, p. 1), of 16 April 2004 (Exhibit 62-1, p. 18), of 6 May 2004 (Exhibit 62-1, p. 23), of 9 May 2004 (Exhibit 62-1, p. 33), of 24 August 2004 (Exhibit 62-1, p. 44), undated, attached to a document on the technology transfer agreement (Exhibit 62-1, p. 65, of 17 January 2005 (Exhibit 62-1, p. 72), of 27 January 2005 (Exhibit 62-1, p. 79) and of 29 January 2005 (Exhibit 62-1, p. 84) merely accompany exchanges of documents between the Chinese Ministry of Railways, B’s local partner in China (Datong), and Group ALSTOM, without any personal comment by Ms. C.

In particular, there is no evidence that ALEXANDER BROTHERS drew up the draft agreement between ALSTOM and its local partner in China (Datong) attached to the correspondence of 20 November 2003 (Exhibit ALSTOM no. 62-1, pp. 4-6). Indeed, the origin of this draft agreement does not derive either from the document itself or from the accompanying letter, and, as ALSTOM points out, it was never claimed by ALEXANDER BROTHERS in the course of the arbitration. Some documents come from ALSTOM itself, such as a letter dated 12 January 2005 from Mr D, B’s project manager, to Mr P Q at the Ministry of Transport, and are therefore of no interest to ALSTOM (Exhibit ALSTOM no. 62-1, p. 63).

The most substantial letters are summaries of meetings between Ms C G and representatives of the Ministry of Railways (note of 9 January 2005, Exhibit ALSTOM no. 62-1, p. 55, note of 13 January 2005, Exhibit 62-1, p. 62, note of 3 February 2005, Exhibit 62-1, p. 62). They are, however, not accompanied by any contemporary documentation - such as correspondence exchanged in connection with the organisation of meetings, copies of agendas, notes taken during the meeting and minutes - which enable to verify their authenticity. No further documents have been produced before the court.

As ALSTOM points out, these elements alone - which establish nothing more than an intermediary role in the exchange of correspondence between ALSTOM and the Ministry of Railways - do not appear to justify the existence of ‘substantial and significant steps to obtain the projects’ (concl. ALSTOM no. 4, p. 68). They are, in any event, disproportionate to the payment, on 10 February 2006, of a sum of EUR 1,119,360.00.

However, the file produced in support of the invoice also contains other documents that further demonstrate the effectiveness of ALEXANDER BROTHERS’s role. These are sensitive or confidential documents or information whose origin is not established:

The minutes of a meeting between the Ministry of Railways and Datong, the local partner of ALSTOM Transport, held on 9 April 2004 at 8 pm in the office of the Minister of Railways (Exhibit ALSTOM) No. 62-1, pp. 12-17), issued on 10 April 2004 by Ms C G with the indication that ‘this report comes from the office of U Zhijun’ [Minister of Railways from 2003 to 2011]. It contains sensitive information on the Ministry’s view of the cooperation between ALSTOM and Datong, as well as on the nature and importance of the technology transfer expected from ALSTOM)
In its submissions no. 4 (p. 19), ALEXANDER BROTHERS invokes this transmission (which it cites as Exhibit ALEXANDER BROTHERS arbitration C-15) as evidence of the reality of its performance, pointing out that the accompanying letter draws B’s attention to Datong’s proposal to start with the production of 20 units. This presentation suggests that ALEXANDER BROTHERS participated in the meeting. However, Ms C G’s name was not among the participants listed in the minutes and ALEXANDER BROTHERS did not indicate that the name of another of its representatives would appear on the list. In the course of the arbitration proceedings, Ms C G was questioned on several occasions as to the conditions under which she had obtained the document and refused to reply (transcript of the hearing, Exhibit ALSTOM) No. 58-1, pp. 97-98 of the French translation).
ALEXANDER BROTHERS report by CNR [China’s state-owned train and railway equipment manufacturing company, Datong’s parent company] on the proposed cooperation between ALSTOM and Datong (Exhibit ALSTOM No. 62-1, pp. 18-22), which sets out the objectives pursued by Datong in its relations with ALSTOM) especially with regard to technology transfer. This document is accompanied by a letter from Ms. C dated 16 April 2004 stating that it ‘comes from the CNR office’. During the arbitration hearing, Ms C confirmed that she had refused to answer B’s counsel’s questions about the conditions under which she had obtained the document (transcript of the hearing, Exhibit ALSTOM) No. 58-1, in French translation, pp. 98 and 99).
ALEXANDER BROTHERS report on the evaluation by the Ministry of Railways of the technical offers submitted by ALSTOM and its competitors, Siemens and Bombardier (Exhibit ALSTOM No. 62-1, pp. 33-42). This report, which ALSTOM asserts, without being contradicted, that it was issued prior to the submission of the bids by the various bidders, specifies the technical characteristics as well as the financial terms of the bids of the three competitors, and sets out the pricing policy applied by the Ministry of Railways. Ms C’s accompanying letter of 9 May 2004 does not indicate its origin. During the arbitration hearing, Ms C confirmed that she had refused to answer B’s counsel’s questions about the conditions under which she had obtained the document (transcript of the hearing, Exhibit ALSTOM) No. 58-1, in French translation, pp. 97-99).

Before the court, ALEXANDER BROTHERS gave the following explanation:

Since the invitation to tender is an iterative process in China and the government does not hesitate to provide information in order to obtain the most relevant and best offer, the MCCF [Chinese Ministry of Railways] provided ALEXANDER BROTHERS, as it did for the other bidders, with the information necessary for the preparation of the bids". ALEXANDER BROTHERS adds, without spelling out the consequences she draws from this information: “Moreover, since the contemporary objective of the Chinese authorities was to obtain technology transfers, Western companies were obliged to associate themselves with certified local partners. ALSTOM) failing to be certified was in any case forced to work with Chinese companies that had been certified.” (Submission No. 4, p. 21).

However, as ALSTOM points out, although the question of the origin of the sensitive documents was discussed during the arbitration, it does not appear that ALEXANDER BROTHERS then claimed that they would have been obtained through an open and legitimate dialogue between the Government and the bidders. ALEXANDER BROTHERS did not produce any official correspondence establishing the existence of such exchanges, nor, moreover, any documents showing that B’s competitors would have benefited from the same information, the latter circumstance not being inferred from the fact that those companies had obtained other contracts.

More generally, ALEXANDER BROTHERS does not demonstrate by any document that such an ‘iterative process’, involving the disclosure of competitors' bids, would be an accepted practice in China, while ALSTOM establishes, on the contrary, that Tendering and Bidding Law of the People’s Republic of China imposes strict confidentiality on the contracting authority (Art. 38, Exhibit ALSTOM) No. 86), and that this principle applies even in the so-called “competitive dialogue” procedure provided for in the Government Procurement Law of the People’s Republic of China of 29 June 2002, Article 44 (4) of which provides that “All members of the negotiation team together negotiate with the suppliers individually. During negotiation, neither side may disclose other suppliers' technical data, prices or other information related to the negotiation'. (Exhibit ALSTOM) No. 87).

The transmission by a consultant to a candidate for an invitation to tender of confidential information from the contracting authority, without specifying the conditions under which it was obtained, is a particularly serious indication of corrupt practices.

On 17 November 2008, ALSTOM made a second payment of EUR 932,800 (25% of the total remuneration of Contract No. 1), which is not discussed to correspond to the totality of invoice no. 2.

It produced, as Exhibit 62-2, the file of proof of service produced by ALEXANDER BROTHERS in support of that invoice.

It contains 53 notes, dated from 8 January 2006 to 9 September 2009, signed by Ms C. They are generally longer than the previous ones. They concern technical difficulties in the performance of the contract. They consist of translations or summaries of documents or letters from the Ministry of Railways of the CNTIC (China National Technical Importe and Export Corporation), without any comment from Ms C. Apart from the translation, these documents do not demonstrate any added value for ALEXANDER BROTHERS, which merely acts as a mailbox.

Moreover, apart from the letters dated 8 January, 15 February, 9 September 2006 and 13 January 2007, the notes in the second evidence file, unlike those in the first file, do not mention the name of the addressee, so that it is impossible to know whether they were actually sent on the dates they indicate or whether, as ALSTOM claims, they could have been produced by ALEXANDER BROTHERS post facto in order to supplement its file of documentary evidence (concl. ALSTOM) p. 59). ALEXANDER BROTHERS has not provided any explanation on this point.

In its submissions on Contract No. 1, it appears that the actions of ALEXANDER BROTHERS consisted in the communication of confidential documents, the unlawful origin of which can be presumed from the intentionally concealed conditions under which they were deliberately obtained. Those actions are demonstrated by documents which are indisputably of the same date as the facts and which correspond - beyond a mere translation and letter-box services - to its task as consultant and do not appear disproportionate to the overall sum of EUR 2,052,160.00 paid by ALSTOM.

Consultancy Contract No. 2:

On 22 December 2004, the two ALSTOM companies entered into a consultancy contract with company ALEXANDER BROTHERS in order to respond to the invitation to tender issued by the Chinese Ministry of Transport for the design and supply of self-propelled electric passenger trainsets for high-speed trains. It was designed in the same terms as the first contract and, in particular contained, the same prohibition of illicit payments to foreign public officials.

The contract provided for a total remuneration of 0.5% of the market, i.e. EUR 3,122,000.00.

It provided for a first partial payment (30%) on the date the contract came into force and receipt of the first advance payment from the Chinese client.

ALSTOM paid in full the first instalment of EUR 936,660.00 (30% of the total) on 10 February 2006, on the basis of the file provided by ALEXANDER BROTHERS in support of its invoice.

ALSTOM produced this file as Exhibit 63-1, making the same arguments as those made in respect of Contract No. 1.

This file contains 16 notes drawn up by Ms C G dated 5 September 2003 to 28 January 2005, i.e. a period of approximately 17 months, addressed to Mr N O.

These notes are very succinct. They are confined to the transmission of documents between ALSTOM) its local partner, and the Ministry of Railways, without any comment by Ms C. There is no evidence that any of the attached documents - and, in particular, the draft agreement with Sifang - are the work of ALEXANDER BROTHERS. Some of the documents in the file are copies of correspondence, notes or PowerPoint presentations by ALSTOM and therefore do not correspond to any services issued by ALEXANDER BROTHERS (Exhibit No. 63-1, pp. 54-77, pp. 84-93, pp. 96-105, p. 116, pp. 118-119). The notes mentioning meetings allegedly held between Ms C and members of the Ministry of Railways are not accompanied by any contemporary documentation proving that they actually took place (Exhibit 63-1, pp. 83, 150 and 157).

ALSTOM claims that the file attached to the first invoice contains a confidential document. It is a PowerPoint presentation by a competitor of its commercial strategy on the Chinese market, its concept of technology transfer and the technical characteristics of its high-speed trains (Exhibit No. 63-1, pp. 2-43). Ms. C’s accompanying memorandum states that it is a document from the Ministry of Railways relating to Siemens' EMU [electrical multiple units] presentation. ALSTOM submits that Ms. C G confirmed at the arbitration hearing that she had refused to answer questions from counsel for ALSTOM as to how she had obtained this document (Transcript of the hearing, Exhibit 58-1, pp. 99-100).

Before the court, ALEXANDER BROTHERS claimed for the first time that the document was in no way confidential, that it had been disclosed at a conference open to the public and not at a bilateral meeting, that it contained only general information and that it had been issued even before the invitation to tender was issued (submission No. 4, p. 39).

However, it follows from the hearing of Ms C during the arbitration proceedings (Exhibit ALSTOM no. 58-1, p. 99, § 21-25) that the presentation was made by Siemens ‘to the Chinese Ministry of Railways’. So, if several persons attended - which is typical of a PowerPoint presentation - the presentation belonged to that ministry or had been chosen by it. On the other hand, while the presentation was commercial and not technical or financial in nature, it outlined several development strategies being considered by Siemens in China, so it is unlikely that it was issued publicly, and could interest companies aspiring to enter or expand in the Chinese railway equipment market.

On 17 November 2008, ALSTOM made the second and third payments under Contract No. 2 of EUR 624,400.00 and EUR 936,660.00, representing 20% and 30% of the total remuneration, respectively. The file of proof of serviceson the basis ofwhich these payments were made contains 56 notes dated 25 April 2006 to 8 August 2011.

It gives the same observations as the second file relating to Contract No. 1. These are translations or summaries of documents issued by the Ministry of Railways, CNTIC or CRC [China Railway Corporation] without any analysis or recommendation by ALEXANDER BROTHERS. Moreover, as of October 2006, these notes do not designate any recipient within ALSTOM) so that the reality of their dispatch is doubtful.

Consultancy Contract No. 3:

On 2 December 2009, the parties signed a consultant contract in order to bid on an invitation to tender issued by the public company K Shentong Holding Group for the supply of rolling stock for the extension of line 2 of K’s metro line. It provided for a remuneration of 2% of the total amount of the contract, i.e. EUR 672,000.00.

ALSTOM did not pay anything, and the arbitral tribunal dismissed ALEXANDER BROTHERS’s claim for payment on this ground. However, an examination of the conditions of performance of this contract concluded between the same parties appears relevant in the context of a search for evidence of corruption.

The file of supporting documents for services issued by ALEXANDER BROTHERS in respect of contract No. 3 is produced by ALSTOM under reference No. 64. It contains a chronology of Ms C G’s actions (Exhibit No 64, p. 4) according to which:

Date ContactsSubjects and messages

[…] Mayor Although CRC [Bombardier’s Chinese partner] scored a few points higher than the B/Puzhen/Satco consortium in the evaluation of the bid, the mayor of K was requested to award the project to Satco to take into account the future of the joint venture'.

In the same file are included:

an e-mail sent on 30 January 2008 by Ms. C to Mr. R E [Director of Business Development for ALSTOM Transport in China], according to which: ‘Shentong will announce the result of the technical evaluation of the eastern extension of line 2 and will open the bids on Friday 1 February. The final decision will be announced on Monday 4 February’. (Exhibit ALSTOM No. 64, p. 8),
an e-mail sent on 11 February 2008 by Ms C to Mr E which explains:

For the eastern extension of line 2 of K, the first evaluation round (technical part) is not favourable to us: the CRC score is 93.08; Zhuzhou, 85.75; Puzhen, 90.96. The open prices are as follows: 823 from the CRC; 817 from Zhuzhou and 815 from Puzhen. Based on the method of calculation of the invitation to tender, CRC had 0.6 points higher than us. But the municipal authorities decided to award us the project. Then we got all the points for the spare parts. Finally, we won this invitation to tender with + 0.4 points'. (part ALSTOM) no. 64, p. 10).

As a result, ALEXANDER BROTHERS was informed on 28 January 2008 of the results of the technical evaluation of the bids, which were only officially announced on 4 February 2008, and the joint venture B/Puzhen/Satco won the invitation to tender despite a lower score than its competitors.

At her hearing before the arbitrators, Ms C confirmed that she refused to answer questions from counsel for ALSTOM on the grounds on which that decision had been obtained (transcript of the proceedings, Exhibit ALSTOM no. 58-1, French translation, pp. 109-111).

During the arbitral proceedings, ALEXANDER BROTHERS claimed that the decision to award the contract resulted, first, from the consideration by the mayor of K of Ms. C’s arguments relating to the risk of significant losses that B’s Chinese partner would suffer if it failed and, second, from B’s efforts to reduce its prices for spare parts.

In fact, it results from the email of 11 February 2008 that B’s bid was rated lower than that of its competitors at the end of the weighting of the technical and financial criteria, and that it was nevertheless selected, on the intervention of the municipal authorities, before any consideration of the price of the spare parts.

It appears, therefore, that competition was distorted, first, because ALSTOM was informed of the evaluation of the bids before they were published and, second, because the award of the contract was made on the basis of criteria other than those of the invitation to tender, without any attempt to demonstrate the nature of those criteria.

As already stated, ALEXANDER BROTHERS also fails to establish that the Chinese authorities would openly and unlawfully engage in an ‘iterative process’ of awarding contracts involving the disclosure of competitors' bids and their evaluation by the awarding authority prior to their official publication.

Audits:

Following the criminal investigation launched by the US and UK authorities, ALEXANDER BROTHERS agreed to submit to two accounting audits by ALSTOM in August 2012 and June 2013.

The report drawn up following the first audit and covering the financial years ended 31 December 2009, 2010 and 2011 (Exhibit ALSTOM No. 65), appears useful for assessing the indications of corrupt practices, since it is not disputed by ALEXANDER BROTHERS that the structure of the accounts shows the following elements:

‘3. Summary [the report notes that there are no receipts other than those from ALSTOM and that the last payments, notably under Consultancy Contract No. 1, were made in February 2009. On the outgoing expenses, he notes]:

the total cash outflow from December 2009 to 2011 amounted to $4,665k and was mainly related to dividends paid to shareholders ($1,886k), operating costs ($1,597k) and the repayment of ‘amounts due to shareholders’ ($742k) […].
the operating costs are not paid through ALEXANDER BROTHERS’s bank accounts. The shareholders borne the expenses and paid the various vendors through their own credit cards. The expenses are then grouped and recorded in the ‘amount due to shareholders’ account.
no significant unusual transactions were identified during our review and the main transactions have been identified. However, a number of accounting errors and internal control issues were identified (see § 4).

Detailed observations: review of ALEXANDER BROTHERS’s operating expenditure

We have reviewed a number of operational expenses incurred for travel, entertainment, rentals, management fees and consultancy fees. Our analysis disclosed several accounting errors and internal control weaknesses:

the level of documentation is not considered appropriate, as most of the costs tested are only supported by credit card receipts. The purpose and nature of the costs are not declared. Several receipts are grouped together. Our analysis revealed that the accounting entries are difficult to reconcile with the receipts.
various errors were found concerning the reimbursement and the declaration of costs (inconsistency between the receipt and the reimbursement)
some receipts are made out in the name of third-party companies, such as Beijing Dacelue Business Consulting,
several purchases of items of significant value, such as paintings and furniture, are not reported in the company’s assets. According to the Business Advisor, the assets are used in his Beijing office. It should be noted that ALEXANDER BROTHERS’s operating expenses consist of many smalltransactions’.

According to note 1 (‘Summary of cumulative cash flows for the year ended 31 December 2011’) :

total receipts for 2009, 2010 and 2011 amounted to USD 4,212,000, of which USD 4,192,000 was received from ALSTOM and USD 20,000 was interest received for the down payment,
Dividends paid amounted to USD 1,886,000, operating expenses to USD 1,597,000, and repayments of shareholder loans to USD 742,000.

The statement of profit and loss (note 2) showed, over three years, rental and management expenses of USD 555,000, travel expenses of USD 331,000, consultant fees of USD 206,000, salaries of USD 177,000 and entertainment expenses of USD 125,000.

The balance sheet showed current liabilities of USD 1,607 (of which USD 1,605,000 paid to shareholders and USD 2,000 of accumulated expenses), share capital of USD 1,000 and retained earnings of USD 2,948,000 for the three years.

Against B’s allegation of the suspicious nature of these accounts, in particular with regard to the payment of operating expenses on the personal accounts of the shareholders without an invoice, or the very high amount of entertainment expenses, or the purchase of expensive items which are not on the company’s assets, ALEXANDER BROTHERS argued:

that it was chosen as a consultant following an in-depth audit,
that it agreed to cooperate in the audits carried out by ALSTOM in 2012 and 2013,
that the results of these audits, carried out unilaterally by ALSTOM) were not communicated to it prior to the arbitration,
its accounts do not disclose any unjustified payments or evidence of corruption,
that the errors found in its accounts are marginal, that they do not affect the regularity of its accounts and that they concern sums too small to constitute bribes,
that, moreover, the auditors did not in any way alert ALSTOM to the existence of unlawful acts and the need to sever all relations with ALEXANDER BROTHERS,
that its accounts are certified by an accounting firm of […] which certified during the arbitration proceedings that most of the shareholders' expenses were supported by receipts.

that it was chosen as a consultant following an in-depth audit,
that it agreed to cooperate in the audits carried out by ALSTOM in 2012 and 2013,
that the results of these audits, carried out unilaterally by ALSTOM) were not communicated to it prior to the arbitration,
its accounts do not disclose any unjustified payments or evidence of corruption,
that the errors found in its accounts are marginal, that they do not affect the regularity of its accounts and that they concern sums too small to constitute bribes,
that, moreover, the auditors did not in any way alert ALSTOM to the existence of unlawful acts and the need to sever all relations with ALEXANDER BROTHERS,
that its accounts are certified by an accounting firm of […] which certified during the arbitration proceedings that most of the shareholders' expenses were supported by receipts.

As regards the respondent’s objections, it will be observed, first, that the fact that ALEXANDER BROTHERS would have been subject to a detailed audit of ALSTOM (before the conclusion of the contracts) does not establish that ALEXANDER BROTHERS could not subsequently have had recourse to unlawful practices. Moreover, it is noted that, in accordance with a certificate drawn up on 21 July 2014 by Mr. M. F, an employee of CCH Management Ltd, ALEXANDER BROTHERS’s tax and accounting representative (Exhibit ALEXANDER BROTHERS, no. 26), that company, whose object was the chartering of containers, had been dormant since 31 December 2000 and was reactivated from 1 December 2004 only to provide the consultancy services which ALSTOM had entrusted to Ms C since January 2003 (Exhibit ALSTOM no. 58-2, hearing of Ms C, p. 66). Thus, an audit of an empty shell could provide little relevant information.

Secondly, ALEXANDER BROTHERS agreed to the audits because ALSTOM) which was its sole source of income, made it a condition of its payments. Moreover, ALEXANDER BROTHERS could assume that ALSTOM would not rely on elements which might incriminate its own conduct - which was disclosed to be partially accurate since ALSTOM) despite the injunction given to it by the judgment of 10 April 2018, has not produced the results of the second audit covering the period 2004-2008.

Thirdly, it follows from the hearing of Mr F, who took part in both audits and met B’s internal compliance officers (Exhibit ALEXANDER BROTHERS, No. 26 and Exhibit ALSTOM 58-2, transcript of the hearing held on 24 March 2015, hearing of Mr F p. 7), that at least before the arbitration hearing the results of the first audit had been communicated to ALEXANDER BROTHERS (Exhibit 58-2, p. 18), which had been able to discuss them, in particular through the hearing of Mr F.

Fourthly, proof of corruption is established by clues, since it is not customary to show explicitly in the accounts the sums used for this purpose.

Fifthly, the audit had no other purpose than to draw up a picture of ALEXANDER BROTHERS’s accounting situation, leaving it to B’s managers to draw the consequences they deemed appropriate, which they did by refusing to pay the balance of Contracts Nos. 1 and 2 and by refraining from making any payment under the third consultancy contract.

Lastly, with regard to the company’s operating expenses incurred by bank cards from the shareholders' personal accounts, it follows from Mr. F’s statements, and it is not disputed, that they involved individually modest sums, albeit for a large total, in excess of $500,000 per annum. While Mr. F claims that these expenses were accompanied by supporting documents, he does not claim that they consisted of invoices and not simply credit card receipts, nor that they were exhaustive.

ALSTOM does not issue a report on the second audit, covering the financial years 2004 to 2008, but only the form in which the auditors sent this document, which contains a very succinct summary. It emerges from this that income for the entire period amounts to USD 7,347,000, consisting of USD 4,192,000 in payments from ALSTOM and USD 153,000 in interest paid by the banks, and that total disbursements consisted of dividends paid to shareholders (USD 2,204,000) and operating expenses (USD 1,841,000), the latter being paid by the shareholders and subject to reimbursement (Exhibit ALSTOM no. 66). ALEXANDER BROTHERS does not dispute that the structure of its accounts corresponds to this succinct description, which is moreover consistent with that observed over the following period.

Therefore, it results from the first audit that ALEXANDER BROTHERS’s shareholders (Ms. C herself, as well as her sister and brother-in-law, executive director: concl. ALEXANDER BROTHERS, p. 21) have received in three years USD 1,886,000 in the form of dividends, the use of which is not controllable, USD 1,597,000 in reimbursement of current expenses without invoices, and USD 742,000 in reimbursement of shareholder loans, i.e. approximately 90% of the sums paid by a single principal, ALSTOM. The second audit leads to a similar result.

It concluded that ALEXANDER BROTHERS was essentially a vehicle for transferring funds to its shareholders, for uses that were hardly verifiable or unverifiable.

In addition to this circumstance, there was also the purchase of expensive goods (furniture, works of art) which were not found in the assets, as well as high entertainment expenses (more than USD 40,000 per year on the ground).

The material and human resources of ALEXANDER BROTHERS:

Another indication of the claimant’s use of unlawful processes is the low level of ALEXANDER BROTHERS’s material and human resources.

Although ALEXANDER BROTHERS claims that it had nine employees, it only produces ‘consultant’s information sheets’ sent to ALSTOM from 2008 onwards (‘Business Advisor Profile’ for 2008, 2009, 2011 and 2012: Exhibits ALEXANDER BROTHERS Nos. 20-23). Apart from the fact that these documents are purely declarative and do not specify the names and roles of the persons involved, they are not corroborated by the production of employment contracts or any other material evidence.

In its submissions before the court, ALEXANDER BROTHERS asserts that four employees, whose names and diplomas were specified by it, assisted Ms G in the performance of the tasks entrusted to it by ALSTOM. It provides the court with photocopies of the identity cards and diplomas of Mr H and Ms I, and photocopies of Mr J’s identity card and Ms Yang’s passport, but no certificate from them attesting that they worked for ALEXANDER BROTHERS (documents Nos 27 to 30). The documents produced by ALEXANDER BROTHERS do not therefore provide evidence of the employment of these persons, although the court, in its judgment of 10 April 2018, expressly invited the parties to explain the existence of evidence of corruption, in particular on account of the consultant’s inadequate material and human resources in relation to the scale of the services claimed. This evidence neither resulted from the files of supporting documents that accompanied the invoices, nor from the protagonists' witness statements taken during the arbitration proceedings, which showed Ms G as the sole interlocutor of ALSTOM and the Chinese authorities.

As regards the material resources, ALSTOM submits (concl., p. 66) that ALEXANDER BROTHERS has neither an office in its own name, nor at the address of its registered office in […], nor on the rest of Chinese territory. It submits that in […] it used the services of a domiciliation company, that in Beijing and K, ALEXANDER BROTHERS was not registered with the chambers of commerce and industry and that no official document referred to those offices, and that the Beijing address communicated by ALEXANDER BROTHERS corresponded to that of Ms G.

A replied: ‘B’s ‘compliance officer’ visited the offices of […] and Beijing before the agreements between the parties were formalised and declined to visit K’s premises.

A therefore has premises that it can use to receive its clients and contacts as well as technical, administrative and accounting support’. (submission ALEXANDER BROTHERS No. 4, p. 22)

The allegation of a visit to the premises prior to the conclusion of the first contract, which is disputed by ALSTOM) is not corroborated by any of the discussions.

On the other hand, it is established that the address of ALEXANDER BROTHERS’s registered office at […], 19/F Tien Chu Comm Building 173-4 Gloucester Road, L, is that of a domiciliary company, CCH Secretarials Ltd (Exhibit ALSTOM no. 85), which is also that of ALEXANDER BROTHERS’s tax and accounting representative, CCH Management (Exhibit ALEXANDER BROTHERS nos. 20 and 26).

As to the fact that ALEXANDER BROTHERS’s Beijing address corresponds to the address of domicile declared by Ms G C in the company’s registration documents (3-201, 5 Hao Lou, 68 Xinzhong st., S T), this is the result of a report drawn up on 15 November 2011 following an unofficial investigation entrusted by ALSTOM to an ADIT company (Exhibit ALSTOM) No. 85). ALEXANDER BROTHERS does not challenge that document and, although requested by the judgment of 10 April 2018 to justify its material resources, does not produce any evidence of the existence of business premises.

Therefore, it follows from the above submissions that remunerations of EUR 3,731,200.00 and EUR 3,122,000.00 were stipulated in two consultancy contracts concluded on 26 August 2004 and 22 December 2004 with a company which had no previous activity and which is unable to provide evidence of business premises or the employment of employees. These remunerations were paid in the amount of EUR 2,052,160.00 and EUR 2,497.00 respectively. EUR 720.00, in consideration of services of which the only services that are demonstrated by documents that are indisputably contemporaneous with the facts and that are not disproportionate to these amounts, involved the communication of confidential documents in violation of Chinese laws on invitations to tender. Those remunerations were ALEXANDER BROTHERS’s sole source of income and that approximately 90% of it was paid to the three shareholders, Mrs G and members of her family, under conditions that did not allow any effective control over its use, and that the consultant’s accounts also disclosed suspicious expenses such as works of art or expensive furniture not included in the assets. This remuneration constituted ALEXANDER BROTHERS’s sole source of income and that approximately 90% of it was paid to the three shareholders, Mrs G and members of her family, under conditions that did not allow any real control over its use, and that the consultant’s accounts also disclosed suspicious expenses such as works of art or expensive furniture not included in the assets. Furthermore, it is established that a third consultancy contract concluded with ALEXANDER BROTHERS resulted, thanks to Ms G’s intervention with the mayor of K, in the award of a contract to ALSTOM) although the latter’s bid was rated less highly than that of its competitors, which she had in fact learned from Ms G before the results were published.

All these elements together give serious, precise and consistent indications that the sums paid by ALSTOM to ALEXANDER BROTHERS financed and remunerated corrupt activities by public officials.

Moreover, although neither ALEXANDER BROTHERS nor ALSTOM were prosecuted for those acts - which is a matter for the criminal policy of the Chinese authorities - the fact remains that Mr U V, who was Minister for Railways from 2003 to 2011 and was Ms G’s interlocutor, was sentenced in 2013 to life imprisonment for having received some 65 million yuan (approximately €8.6 million) in bribes between 1986 and 2011.

(Exhibit ALSTOM) No. 83), and that Mr H W, Deputy Chief Engineer of that Ministry, was sentenced to the same penalty for having received 47 million yuan (approximately 6.2 million euros) in bribes between 2000 and 2011 (Exhibit ALSTOM) No. 84).

ALSTOM further adds that it was customary for it to bribe foreign public officials, including through alleged consultants, as it acknowledged under agreements for 2013 and 2014 with the US Department of Justice relating to acts committed in Indonesia, Saudi Arabia, Egypt and the Bahamas (Exhibits ALSTOM Nos. 8 and 9). This circumstance should be considered, however unimportant it may be to the benefit of those who invoke their own turpitude, since the refusal to give force to a corruption contract transcends the interests of the parties.

It is therefore appropriate to find that the recognition or performance of the award that orders ALSTOM to pay sums intended to finance or remunerate corrupt activities is contrary to international public policy, to overturn the order granting it enforcement (in French: Exequatur), to dismiss ALEXANDER BROTHERS’s application for enforcement (in French: Exequatur) and to order ALEXANDER BROTHERS to return to ALSTOM Transport the sum of EUR 1,828,850.88 corresponding to the funds transferred to it following attachment.

On Article 700 of the Code of Civil Procedure:

No consideration based on equity requires that one of the parties benefit from the provisions of Article 700 of the Code of Civil Procedure.

FOR THESE REASONS:

Reverses the order of 19 May 2016 by which the delegate of the President of the Paris Tribunal de Grande Instance conferred enforcement (in French:Exequatur) on the award issued on 29 January 2016 between the parties.

Dismisses the application for enforcement (in French: Exequatur) filed by Alexander Brothers Ltd.

Orders Alexander Brothers Ltd. to return to ALSTOM Transport SA the sum of 1,828,850.88 euros.

Orders Alexander Brothers Ltd. to pay the costs.

Dismisses the claims made pursuant to Article 700 of the Code of Civil Procedure.