Client Alert: Volterra Fietta files an ICC arbitration for an Afghan pro bono client against NATO for the alliance’s failure to pay sums owed under a long-term contract

On 29 March 2023, Volterra Fietta filed an international arbitration against the North Atlantic Treaty Organization (“NATO”) on behalf of a long-term Afghan contractor to NATO. Volterra Fietta is acting pro bono and without any payment of its fees in the case. As far as Volterra Fietta is aware, this is the first pro bono arbitration ever filed against NATO.

For years, Volterra Fietta’s client worked closely as a contractor to NATO to promote democracy and human rights throughout war-torn Afghanistan. As alleged by Volterra Fietta’s client in the arbitration, after NATO left Afghanistan, NATO chose not to pay significant contract debts that it owes to the client because it had no more use for its services. This is alleged to have left the client unable to reimburse suppliers for NATO’s orders, causing its staff trapped in Afghanistan to be persecuted, suffer torture and be at risk of death.

In other words, as alleged, NATO abandoned the contractor and its staff. In particular, it is alleged that NATO ignored (and in fact often did not even respond to) the client’s pleas for assistance related to the torture and risk of murder of its staff as and after NATO left the country.

The client is seeking payment of all the sums owed to it under the contract, in order to alleviate the plight of its executives and staff remaining in Afghanistan. The client is also seeking a finding from the tribunal that NATO violated its own ethical policies and codes of conduct. At this stage, the client’s claims in the arbitration have not been adjudicated. The client is requesting the chance to prove its allegations to an impartial arbitrator.

Volterra Fietta’s client is maintaining its confidentiality in the proceedings in order to protect the lives of its executives and staff, and their families, still left in Afghanistan.

The arbitration was filed with the International Court of Arbitration of the International Chamber of Commerce in Paris. Due to NATO’s conduct, the client has been left without access to funds. As a result, the client has also asked the International Court of Arbitration to waive or reduce its usual fees for this arbitration, to enable the client to have access to justice.

Partner Gunjan Sharma, who is lead counsel in the arbitration, said: “I was shocked to read emails from NATO trying to dissuade our client from pursuing its contractual rights by telling its loyal service provider, which had already lost so much, that arbitrating its claims would cost it hundreds of thousands of dollars. Volterra Fietta agreed to represent this client without any payment, pro bono, because international law and arbitration should not only protect the well-financed and powerful. There are important principles of access to justice and the rule of law at issue in this dispute. It is to be hoped that the ICC Court of Arbitration will play its part in ensuring access to justice when it comes to the question of administrative fees from this impecunious but meritorious client.”

The client is also represented pro bono by co-counsel, Vos Public International Law B.V., based in Amsterdam. The principal of that law firm, Ms Florentine Vos, a consultant to Volterra Fietta, adds that: “The applicable law is Dutch law. Among other issues, our client’s submission is that NATO acted contrary to the terms of the contract and the fundamental Dutch law principles of reasonableness and fairness. Our client thinks that NATO should treat all of its contractors fairly, whether a small Afghan company or a large military contractor.”

For further information on Volterra Fietta’s public international law and arbitration practice, please contact info@volterrafietta.com.

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