Continuing Daphne's Work: our Amicus Brief to ICC in Steward's case against Malta

The decision (PDF) of the International Chamber of Commerce Arbitral Tribunal (ICC Tribunal) in the proceedings the US healthcare company, Steward, brought against Malta in relation to the public hospitals concession, was announced by the Government yesterday. The decision is welcome insofar as it rejected Steward’s claim for compensation from the country.

What was the ICC case about?

Steward had brought the proceedings on the basis of a direct agreement, ostensibly negotiated by then Minister for Tourism Konrad Mizzi, which allowed Steward to claim a 100 million euros cancellation fee in the event of court-declared nullity of the concession agreement, even in the event that Steward was responsible for such nullity.

In its report on the concession, Malta’s National Audit Office termed the entry into this direct agreement “the most evident exploitation” of Government by Steward of the weakness created through “[t]he delegation of responsibility for a health concession to the Minister for Tourism”, a consequence of the “unorthodox dynamic that persisted between the Prime Minister [Joseph Muscat] and the Minister for Tourism.”

In 2023, the Maltese civil court declared, in a decision later confirmed on appeal, that there was fraud at all stages of the deal on the concession. The declaration echoes the conclusions of the National Audit report, as well as those of the Magisterial Inquiry report.

Our amicus curiae brief

In line with our mission to promote justice and accountability in cases of high-level corruption, we submitted an amicus curiae brief to the ICC Tribunal in March of this year.

Our submission provided the ICC Tribunal with information we had obtained through our continuation of Daphne Caruana Galizia’s original investigations into the fraudulent concession, malfeasance she had first exposed, and on which she continued to report, on her blog, Running Commentary.

Through our amicus curiae brief, we sought to bring to the attention of the ICC Tribunal the particular circumstances surrounding the concession, which neither of the parties may themselves have presented. Our aim was to ensure that the public interest, and the significant public resources placed at risk through the fraudulent hospitals deal, were protected in the course of the ICC proceedings.

In Prime Minister Abela’s words, the ICC Tribunal “found no fraud in the hospitals deal”. This can mean one of two things: either the Government did not argue that fraud had occurred, or the Government failed to present sufficient evidence of the fact.

While we have not had the privilege of seeing the award made by the ICC Tribunal, the apparent outcome of the proceedings represents, in our view, not a vindication for the Maltese government, but a narrow escape for our country from even further pillaging by an opportunistic corporation enabled by high-level corruption.