The arbitration legend Emmanuel Gaillard died suddenly of an aortic dissection on April 1, aged 69, as the Dutch Supreme Court neared the final word on the $50bn Yukos v. Russia case — a saga that occupied the final 17 years of his life. However, in the first case argued by his colleagues after his passing, the opposition was not Russian, but Angolan kleptocracy, in the form of Africa’s richest woman, Isabel dos Santos.
Gaillard’s longtime colleague, Yas Banifatemi, told the tribunal in her closing argument that the best tribute they could pay Mr Gaillard would be to render a landmark arbitral award against corruption. She was granted her wish on July 23, in Exem Energy v. Sonangol. At issue was the transfer of a big stake in the Portuguese oil company Galp, from the Angolan oil company Sonangol to a mysterious shell called ‘Exem’.
With the help of the ‘Luanda leaks’ documents, Mr Gaillard and Ms Banifatemi showed that Exem was a front for Ms dos Santos (whose father was the then Angolan president); that her initials were on every page of the contract; and that the price was below-market, with a substandard deposit and the rest paid in a local currency rarely used in global business.
The Netherlands Arbitration Institute panel concluded that the deal’s “nature and size ... cannot be explained, but for grand corruption by the daughter of a head of state”, and that “kleptocratic transactions by the ruling elite” offends public policy. The arbitrators thus embraced the bolder emerging approach to corruption that Mr Gaillard had urged in both his practice and scholarship.
“Emmanuel cared deeply about the rule of law and the fight against corruption, and also about Africa,” says Ms Banifatemi. “This is the one case where all of that came together.”
In Mr Gaillard’s capacious view, arbitrators maintain the rule of law by acting as the guardians of an autonomous and fully operational legal order. If a national court deigns to enjoin it, then a tribunal should go about its business — and that is exactly what he did as arbitrator in the milestone case of Salini v. Ethiopia (2001). He felt just as strongly when the European Court of Justice held, in Slovak Republic v. Achmea BV (2018) that EU law voids international investment arbitration treaties among EU members. “This is a regression of the rule of law for ideological reasons,” he told me. “It's a form of parochialism. It’s a mixture of ignorance and a power grab.”
The publication of the dos Santos award comports with Mr Gaillard’s lifelong stance in favour of transparency. In 1986, he launched the first compendium of awards by the International Centre for Settlement of Investment Disputes for the French Journal du Droit International (Clunet) [French Journal of International Law]. In 2001, he unveiled the first registry of international arbitrators, for the International Arbitration Institute. In 2011, he helped remove the presumption of confidentiality from the French code of arbitration. And in 2013, he co-founded an online searchable database of UN Commission on International Trade Law enforcement rulings, NYConvention1958.org.
He embodied the spirit of transparency in his dealings with journalists (or “merchants of recognition”, as he called us in a witty essay on the sociology of arbitration influenced by Pierre Bourdieu). When we dubbed him the “silver-helmeted Gaillard”, he laughed good-naturedly. When we critiqued his practice’s lack of gender balance, he said, “You're right”. He spent the rest of his career redressing this.
When we took corruption by his clients as seriously as corruption by his opponents, he made his arguments forcefully, yet respected our role. Whether the Dutch Supreme Court agrees with the oligarchs or the kleptocrats in its imminent Yukos ruling, the legacy of the silver-helmeted Gaillard is secure. Whatever happens, he once told me: “Investment protection is here to stay. The form may change; some aspects may be improved — and probably should be — but it is a lasting enhancement of the rule of law.”
Michael D Goldhaber has been tracking the world’s largest disputes since the turn of the millennium. Email: email@example.com
This article first appeared in the August/September print edition of fDi Intelligence. View a digital edition of the magazine here.