The Republic of Mozambique v Credit Suisse International & Ors

A bribe is a secret payment or inducement creating a realistic prospect of conflict between an agent’s personal interest and that of the principal. The recipient must have a role in the relevant decision-making process, but the payer and principal need not be negotiating a contract with each other. A payment need not be linked to one particular transaction if the agent is tainted when the transaction occurs.

Under Mozambican law, active corruption includes an intentional offer, payment or promise of an undue advantage to a public servant to procure an act or omission. The court rejected the argument that Law 6/2004 repealed the earlier offence. A victim of bribery need not give credit for unrealised profits or for value supplied under transactions procured by the bribery where the recipient lacked the capacity to use them successfully.

The Republic brought claims arising from three state-backed projects involving Proindicus, EMATUM and Mozambique Asset Management. The projects were financed by banks and supported by guarantees and guarantee confirmations executed by Mozambique’s Minister of Finance, Manuel Chang. The claims against several banks settled before judgment. The remaining principal dispute concerned claims by Mozambique against Iskandar Safa and companies in the Privinvest Group.

Mozambique alleged that payments and promises made to Minister Chang procured the guarantees and caused losses, including payments made under the guarantees, restructuring costs, settlement sums and future bond liabilities. The court considered the governing law under Rome II, Mozambican and English bribery principles, limitation, causation, commerciality and alleged collateral benefits.

1. Disposition. Judgment was entered for Mozambique against Mr Safa and the Privinvest Companies in respect of bribery-related liability. Mozambique was entitled to US$825,188,391 and an indemnity for estimated future payments of US$1,501,250,000, subject to correction of figures and consequential matters. A possible credit of US$421,200,000 for recovered assets was allowed unless Mozambique applied for an enquiry.
2. Governing law. Under Article 4 of Rome II, Mozambican law governed. The direct damage occurred in Mozambique when the Minister of Finance executed the guarantees and guarantee confirmations. The connections with English banking and English-law finance did not establish a manifestly closer connection with England.
3. Mozambican law. The elements of active corruption under Article 321 of the 1886 Penal Code were satisfied. The promises and payments were undue advantages intentionally made to cause Minister Chang to sign the guarantees. Law 6/2004 strengthened the anti-corruption framework and did not repeal Article 321 merely because Article 9 addressed overlapping conduct.
4. English law. The court applied the bribery principles identified in Anangel Atlas and Novoship. Minister Chang was Mozambique’s agent because he participated in deciding whether to execute the guarantees. The payments created a realistic prospect of conflict. It was unnecessary that Privinvest and Mozambique were negotiating directly with one another; Privinvest sought the guarantees as an integral part of obtaining the projects.
5. Loss and commerciality. The guarantees’ validity was not the issue in the claims against Privinvest. Mozambique suffered loss because the guarantee documents existed and because it made payments, entered the EMATUM exchange and settlements, and assumed future bond liabilities. The court rejected a requirement to credit unrealised profits or the value of supplies which the state-owned entities were unable successfully to use. Supply to separately incorporated entities did not itself confer value on Mozambique.
6. Other findings. The court was not satisfied that the alleged payments to other officials established bribery for the purposes of Mozambique’s claims. Claims involving President Nyusi’s immunity and certain contribution or non-appearing-party issues were reserved for further consideration.

First-instance trial judgment in the Commercial Court. Earlier interlocutory and appellate decisions in the same litigation are not treated as parallel citations.