Arbitration panel ruling signals “perils” of investing in Iraq
KUWAIT – February 22, 2021 — Agility, a leading global logistics provider, said foreign investors “should think carefully about the perils of investing” in Iraq, following a ruling by an international arbitration panel to deny its claims that Iraqi officials expropriated $380 million invested by Agility in an Iraqi telecom company.
The ruling, by a panel constituted by the International Centre for the Settlement of Investment Disputes (ICSID), involved Agility’s claims that Iraq expropriated its investment in Korek Telecom, and denied it due process and fair and equitable treatment in breach of the bilateral Kuwait-Iraq investment treaty.
Notably, the ICSID panel denied Agility’s claims without investigating or considering evidence of corruption by key members of Iraq’s Communications & Media Commission (CMC).
Agility said: “The ICSID tribunal has sent the message — not only to the Republic of Iraq, but to the international community of civilized nations — that states can expropriate investments without providing compensation to their foreign investors. This was a regrettable decision, and Agility believes that foreign investors would be well-served to think carefully about the perils of investing in a country such as Iraq which continues to rank among the most corrupt countries, as determined by Transparency International.”
In February 2017, Agility filed its claims with the ICSID, a World Bank organization that serves as a forum for investor-state dispute resolution. The panel was comprised of Chairman Cavinder Bull and members John Beechey and Sean Murphy.
Agility described Monday’s ICSID panel ruling as “fundamentally flawed” because it:
- Refused to address the merits of the regulatory decision itself, claiming lack of jurisdiction.
- Failed to consider or investigate incontrovertible documentary evidence confirming the corruption and payment of bribes by Sirwan Barzani to the senior-most commissioners of the CMC: Ali Al-Khuwaildi, and Dr. Safa Al Rabiee.
CMC corruption, reported widely in the press, including The Financial Times, was not investigated by the ICSID panel or by the Republic of Iraq. Al-Khuwaildi continues to lead the CMC, seemingly immune from any responsibility.
- Sided with the Republic of Iraq on factual matters, despite the fact that the Iraqi government provided no fact witnesses and virtually no documentary evidence.
- Summarily denied Agility’s requests for protection of the identity of its Iraqi witnesses, even in circumstances where Agility’s employees were arbitrarily detained, interrogated and threatened by Iraq’s secret police during the proceedings.
- Failed to address critical arguments or provide reasons for the decisions in its ruling.
To date, there have been four claims against Iraq filed with the ICSID. Three of those claims have been in connection with the actions of the CMC, and three stem from investments in companies based in the semi-autonomous Kurdish area of northern Iraq. ICSID tribunals have failed to hold Iraq liable for any of these claims, raising further doubts about what protections ICSID tribunals actually provide in holding states accountable for breaches of their treaty obligations.
Agility is currently considering its options to apply for annulment of the decision.
Separately, Agility is also moving expeditiously to pursue claims of more than $700 million directly against Korek, Sirwan Barzani and others, pursuant to a separate arbitration being conducted pursuant to International Chamber of Commerce rules.