Former Trafigura operations chief unfairly charged ‘to send a message’, lawyers argue

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Bribery charges against former Trafigura chief operating officer Michael Wainwright were unfairly brought to “send a message” that Switzerland was tough on corruption, his lawyer told judges on Wednesday.

Wainwright is at the centre of a blockbuster legal case against Trafigura in the wealthy alpine country, offering a rare glimpse into the opaque workings of the global trade in commodities and the politically sensitive and unstable environments in which its biggest players operate.

Prosecutors asked on Monday that Wainwright be jailed for four years, accusing him of “textbook” criminality in a scheme that channelled bribes to an Angolan government official to win oil bunkerage and shipping contracts.

Centred around Trafigura’s lucrative push into the African country between 2009 and 2011, the case is the first time that Switzerland has indicted a commodity trader, despite being the industry’s main global centre of operations. Before this month, a top executive from a commodity trader had never been put on trial for corruption anywhere in the world. 

“The subtext [of the accusations] is that we in Switzerland are moving against corruption,” Wainwright’s lawyer, Daniel Kinzer, told judges. “But what concerns us is that [this court] is being invited to overlook the presumption of innocence.”

Prosecutors had selectively used evidence and the court had been unable to interrogate the two key witnesses for their case, who were not called to testify in person, Kinzer said in his closing argument. 

Wainwright and Trafigura do not deny that millions were paid by an intermediary they used in Angola to an offshore company, control of which was given to a senior Angolan public official. But they said Trafigura and Wainwright were not aware of those payments or their purpose.

“What is certain is that Mike Wainwright did not want to bribe anyone,” Kinzer said. “My client was involved in the chain of actions that led to the payment . . . as [were] many others.”

There was no evidence that Wainwright was anything other than an “administrator” who signed off on some of the payments in question — as he did for hundreds of others weekly, Kinzer added.

Prosecutors had accused Wainwright of being the “linchpin” in the bribery scheme, and said he had skilfully tried to “camouflage” his intentions and involvement by using intermediaries and secretive communication methods. 

A “pact of corruption” existed at the highest levels of Trafigura, they claimed: “The tone at the top . . . was bribery at the top,” said prosecutor Héloïse Rordorf-Braun.

The case hinged on a small number of key documents because there was “a pact of concealment”, the prosecutors said, arguing that the documents that were available nevertheless constituted a “smoking gun”.

In response, Kinzer said the court was “being invited to consider hypothetical evidence [by] postulations that it has been covered up”.

“But if nothing is found, it’s not necessarily because it’s been hidden from you. It could be because there’s nothing there.”

Trafigura’s lawyers will make their defence statement for the company on Wednesday afternoon. 

They must demonstrate that Trafigura had robust and serious compliance measures in place at the time, which could reasonably have been expected to stop acts of corruption.

They also intend to argue that a large part of the prosecution’s evidence is unsound, and based on limited testimony from compromised witnesses.

In particular they question the testimony of Mariano Ferraz, the former chief executive of Trafigura’s jointly-owned Angolan subsidiary, DT Trading, who implicated Wainwright. Ferraz was alleged to have overseen the bribery payments, but was not indicted.

Ferraz was convicted in Brazil in 2018 in a separate corruption case, and Trafigura’s lawyers have argued that a secret deal was struck to reduce his sentence in return for incriminating testimony against the company. Plea deals are illegal under Swiss law.

The presiding judge rejected an attempt by Trafigura to have Ferraz’s testimony struck from the case, and said it would be taken “on its merits”.