Mr Frank Spoorenberg

Frank Spoorenberg

Updates

Arbitration & ADR

Award set aside for lack of consent to arbitrate
Switzerland | February 22 2018

In a recently published decision, the Supreme Court set aside an arbitral award on the grounds that the parties had not consented to submit their dispute to arbitration. The decision shows the importance of the distinction between a subjective and objective interpretation. Awards should thus clearly identify for each finding of contractual interpretation whether it stems from subjective or objective interpretation.

Supreme Court reconfirms requirements for appointment of independent tribunal expert
Switzerland | December 07 2017

In a recently published decision, the Supreme Court rejected a challenge on the basis that the arbitral tribunal's refusal to appoint a tribunal expert was not a violation of the applicant's right to be heard. With respect to the annulment proceedings and grounds for annulment, this decision seems to express limitations to the formal nature of the right to be heard in adversarial proceedings, at least in respect of the right to adduce evidence.

Supreme Court rules on waiver of challenge
Switzerland | November 30 2017

In a recently published decision, the Supreme Court held that an arbitration clause contained a valid waiver of challenge against the award. The court also held that such a waiver extended to the applicant's subsidiary request for revision. When interpreting arbitration clauses to determine whether they contain such a waiver, the term 'appeal' should be understood as referring to the remedy that parties have against an award in Switzerland, namely the challenge proceedings.

Supreme Court partially annuls award for violation of right to be heard
Switzerland | September 14 2017

In a recently published decision, the Supreme Court partially annulled an award on the grounds that the arbitral tribunal had failed to take into account the claimant's argument in support of one of its prayers for relief. The dispute arose in connection with a tourism project regarding the construction and operation of a hotel and casino in the West Bank. The agreement was governed by Swiss law and provided for arbitration in Zurich.

Ex post short extension to file statement of claim is no ground for challenge
Switzerland | May 25 2017

The Supreme Court recently refused to interfere with a sole arbitrator's decision to extend the timeframe to file the statement of claim. The question may arise again at the enforcement stage in the context of Article V(1)(d) of the New York Convention, which provides that recognition and enforcement of an award may be refused, among other things, if "the arbitral procedure was not in accordance with the agreement of the parties".

Recent decisions on public policy
Switzerland | March 23 2017

According to four recent arbitral decisions, the concept of 'public policy' does not depend on the nature of the underlying dispute; the transfer of bribes is incompatible with public policy only to the extent that bribery is established but not taken into account by the arbitral tribunal; the violation of personality rights is not incompatible with public policy, unless there is a serious violation of fundamental rights; and the rules on the burden of proof are not part of public policy.

Revision of arbitral award granted for discovery of new evidence
Switzerland | January 26 2017

The Supreme Court recently admitted a request for revision of an arbitral award based on the subsequent discovery of new evidence in relation to bribery. The court recalled that the revision of arbitral awards can be sought based on the Federal Tribunal Statute and that, among other things, newly discovered evidence must prove either newly discovered facts or facts that were already known in the main proceedings but remained unproven.

Independence of arbitrators in large international law firms
Switzerland | December 01 2016

In a recent decision, the Supreme Court had to deal with the independence of an arbitrator who was a lawyer in a large international law firm. The court found that there was no indication of a conflict of interest and left undecided the question of whether a revision of an international arbitral award could be sought based on the subsequent discovery of grounds to challenge an arbitrator.

Second round of written submissions and dissenting opinion
Switzerland | September 22 2016

The Supreme Court recently ruled that the parties to an arbitration can validly agree to limit the first phase of the proceedings to one round of written submissions, and that the enforcement of this agreement does not violate the parties' right to be heard. In another recent case, the court held that a dissenting opinion issued by an arbitrator is not part of the arbitral award, has no legal effects and must not be taken into account by the court when deciding a challenge against the award.

Failure to comply with mandatory pre-arbitration requirement
Switzerland | July 14 2016

The Supreme Court recently annulled an arbitral award for failure to comply with a mandatory pre-arbitration requirement. It held that failure to comply with such a requirement leads to the suspension of the arbitration proceedings until the requirement has been complied with. Despite holding that there may not be a solution applicable to all cases, the decision provides some legal certainty regarding the consequence of failure to comply with a mandatory pre-arbitration requirement.

Valid and binding arbitration agreement in draft contract
Switzerland | May 19 2016

In a recent decision, the Supreme Court found that an arbitral tribunal may have jurisdiction based on the arbitration agreement contained in a draft contract. The court made clear that the principle of autonomy of the arbitration clause can apply even if the main contract never came into existence and that the invalidity of the main contract may actually affect the validity of the arbitration clause.

Denial of justice cannot serve as disguised appeal
Switzerland | February 11 2016

A recent decision confirms that the Supreme Court continues to rely on its well-established practice regarding the parties' right to be heard. However, this practice may be perceived to be quite strict for the party that must accept the arbitral tribunal's (sometimes unjustified) refusal to examine the arguments submitted to it, as the court itself acknowledged.

Supreme Court partially annuls CAS arbitral award
Switzerland | December 03 2015

In a recent decision the Supreme Court partially annulled a Court of Arbitration for Sport arbitral award for violation of the plaintiff's right to be heard. This decision confirms that in specific circumstances, arbitral awards may be partially annulled. It also clarifies that public policy does not prevent parties to arbitration from agreeing to limit the arbitrators' power to review the case.

Additional decision on res judicata
Switzerland | September 10 2015

The Supreme Court recently issued a new decision dealing with the principle of res judicata. The decision makes clear that the liberal approach advocated when assessing the identity of the parties should not apply when assessing the identity of the claims. It further seems to exclude application of an international concept of res judicata in Switzerland.

Supreme Court rules again on res judicata
Switzerland | July 16 2015

The Supreme Court has confirmed that there is no incompatibility with public policy where a Swiss arbitral tribunal ignores a foreign decision which, although vested with final and binding effect in the country of origin, cannot be recognised in Switzerland under the New York Convention. This decision confirms the well-settled principle that res judicata is public policy.

Bribery and incompatibility with public policy
Switzerland | April 16 2015

The Supreme Court has confirmed that bribery may constitute a ground for annulment of arbitral awards, to the extent that bribery is established and the arbitral tribunal has refused to consider it in the challenged award. In this case, the tribunal found that proof of objectionable conduct on the claimant's part had not been submitted and reiterated that the principle that criminal law has precedence over civil law is not part of procedural public policy.

Challenge against decision to discontinue or stay arbitration proceedings?
Switzerland | February 12 2015

The Supreme Court recently held that procedural orders on the discontinuation or stay of arbitration proceedings cannot be challenged, unless they contain an implicit decision on jurisdiction. When drafting procedural orders on the discontinuation or stay of arbitration proceedings, arbitrators should indicate whether they intend to make any final determination as to jurisdiction, so parties have no doubt as to the challenge being available.

Supreme Court rules on FIDIC pre-arbitration steps
Switzerland | November 27 2014

In a decision that provides guidance to parties bound by the General Conditions of the International Federation of Consulting Engineers in respect of dispute adjudication board (DAB) pre-arbitration duty, the Supreme Court recently held that DAB pre-arbitration procedure qualifies as a mandatory pre-arbitration step. However, such a step cannot be relied on in case of an excessive delay in the constitution of the DAB.

Supreme Court rules on res judicata
Switzerland | September 18 2014

The Supreme Court recently confirmed an arbitral award which had denied the res judicata effect of a foreign court decision on the ground that the foreign court did not analyse the question submitted to the arbitrators. The decision provides detailed guidance on res judicata and does not close the door to an assessment of the party-identity requirement that is not strictly formalistic.

Arbitration agreement binding on non-signatory parent company
Switzerland | July 17 2014

The Supreme Court recently partially set aside an arbitral award on the grounds that the arbitral tribunal had wrongly denied jurisdiction over the non-signatory parent of a party to the arbitration agreements on which the arbitration proceeding was based. The court found that this parent had become a party to the arbitration agreements based on the principle of good faith.

Principle of autonomy – temporal limitation of arbitration agreement denied
Switzerland | May 22 2014

The principle of autonomy of arbitration agreements provides that an arbitration clause represents a standalone agreement. In a recent decision, the Supreme Court confirmed that the termination of the arbitration agreement must have no effect on the main agreement. Parties which would like to derogate from this rule should say so expressly in the arbitration agreement.

Tribunal's constitution – parties' agreement, immediate challenge
Switzerland | March 20 2014

The Supreme Court recently confirmed that an arbitral award may be annulled if the sole arbitrator was not properly appointed. This ground for challenge was not limited to the grievance of the arbitrators' lack of independence and impartiality, but included the possibility to invoke a breach of the parties' agreement on the tribunal's constitution. Such challenge must be brought immediately.

Termination of arbitration agreement – decision takes parties by surprise
Switzerland | January 23 2014

The Supreme Court recently refused to review the merits of a challenge against an arbitral award in which the arbitrators had declined jurisdiction after having established the parties' common intent to terminate the arbitration agreement. The court rejected the plaintiffs' argument that the arbitral tribunal had violated their right to be heard in issuing a decision which would have taken them by surprise.

Arbitrator's ICC challenge process under New York Convention scrutiny
Switzerland | October 31 2013

When administering an arbitrator's challenge the International Court of Arbitration of the International Chamber of Commerce endeavours to ensure compliance with due process fundamentals. The Supreme Court recently confirmed that such a process was, in principle, consistent with the right to be heard guaranteed under the New York Convention.

Standard form insufficient to exclude violation of right to be heard
Switzerland | September 19 2013

An athlete recently challenged a two-year ban before the Supreme Court on the grounds of infringement of the right to be heard. The athlete argued that the arbitrators had ignored the subsidiary argument developed in his written submission. However, the defendant had established that the argument was immaterial to the resolution of the dispute. The court denied any breach of the right to be heard and dismissed the challenge.

Violation of right to be heard and partial annulment
Switzerland | July 25 2013

The Supreme Court recently annulled an arbitral award on the grounds that the arbitrator had failed to explain why it had not taken into account the deductions submitted by a financial expert and respondent (violation of the right to be heard). The court reiterated the principles regarding the test for arbitral awards to comply with the parties' right to be heard. It also stated that, in specific circumstances, an award may be annulled partially.

Foreign mandatory provisions and arbitrability
Switzerland | June 27 2013

The Supreme Court recently confirmed that a mandatory provision of foreign law should be taken into consideration by an arbitral tribunal sitting in Switzerland when deciding whether a claim may be subject to arbitration. The court recalled that the arbitrability of a specific claim may be denied if foreign legal provisions submit such a claim to the state courts' mandatory jurisdiction, provided that these provisions belong to public order.

Court declines to hear constitution-based challenge against arbitral award
Switzerland | May 09 2013

The Swiss Supreme Court recently confirmed that an ad hoc arbitral tribunal seated in Geneva was regularly constituted within the meaning of the Private International Law Act where French courts had appointed the co-arbitrator of the Israeli respondent in the arbitration proceeding. The domestic court seized to appoint the co-arbitrator was located in France and not Switzerland, which the parties had then chosen as the seat of arbitration.

Four recent Supreme Court arbitration decisions provide legal guidance
Switzerland | February 28 2013

The Supreme Court recently rendered decisions in four arbitration-related cases. The issues under discussion included settlement and the pacta sunt servanda principle, whether an international arbitral award must be reasoned, legal capacity and waiver of a reasoned award.

Bankruptcy no restriction to arbitration unless it excludes bankrupt's legal capacity
Switzerland | December 20 2012

The Supreme Court recently revisited the question of the impact of the party's bankruptcy on the continuation of arbitration. Restrictions to arbitration contained in foreign law provisions which do not affect the parties' legal capacity are irrelevant to an arbitration in Switzerland.

Comprehensive translation of award not required for enforcement in Switzerland
Switzerland | September 27 2012

The Supreme Court recently opted for a flexible and pragmatic interpretation of the New York Convention, confirming Switzerland's reputation as an arbitration-friendly forum. It admitted that in certain circumstances, a party seeking enforcement in Switzerland of an award issued in English may be exempt from producing a certified comprehensive translation of the entire arbitral award into one of the Swiss national languages.

No two-tier judicial review of constitution of arbitral tribunal
Switzerland | August 16 2012

The Supreme Court declined to hear, in a challenge against the final award, arguments related to the constitution of an ad hoc arbitral tribunal that had already been heard by the lower cantonal court in an ancillary proceeding. The Supreme Court considered that the lower cantonal court had already issued a final and binding determination on the constitution of the tribunal and had thus satisfied the judicial review requirement.

Supreme Court vacates international arbitration award on public policy grounds
Switzerland | June 28 2012

For the first time since the Private International Law Act was enacted in 1987, the Supreme Court has vacated an international arbitration award on material public policy grounds. The violation was obvious and thus the annulment of the award is no indication that the Supreme Court intends to be more intrusive into arbitrators' decisions and reasoning, as an appeal court would be.

Supreme Court rules on Private International Law Act
Switzerland | May 03 2012

In a recent decision the Supreme Court held that Article 192 of the Private International Law Act is consistent with Article 6 of the European Convention on Human Rights. The court reaffirmed the validity of a conventional waiver under Swiss law, subject to a clear and unequivocal joint declaration by the parties to exclude all ordinary and extraordinary judicial challenges against the award.

Supreme Court saves pathological arbitration clause
Switzerland | March 08 2012

The Supreme Court has confirmed its practice of constructive interpretation of pathological or ambiguous arbitration clauses. A football club and a football agency entered into an agreement regarding the transfer of a footballer. A dispute arose between the parties which was arbitrated before the Court of Arbitration for Sport (CAS). The decision was appealed to the Supreme Court, which upheld the CAS's award.

Third parties and arbitration clauses in promissor/promissee contracts
Switzerland | November 17 2011

With respect to arbitration agreements, the Supreme Court has been consistent in its restrictive application of the formal requirement for written consent to arbitrate under Article 178(1) of the Private International Law Act. However, it has also favoured an extensive construction of the scope of such consent, sometimes in derogation to the relativity of contractual obligations. The court recently reaffirmed this practice.

Supreme Court confirms benchmarks on pre-arbitration conciliation duties
Switzerland | August 18 2011

In 2007 the Supreme Court set out a number of benchmarks regarding pre-arbitration conciliation duties. In that case it held that pre-arbitration conciliation clauses must be sufficiently specific as to the truly mandatory character of conciliation to be considered as a mandatory preliminary step prior to arbitration. In a recent case, the court confirmed its earlier finding on the content and interpretation of pre-arbitration conciliation clauses.

Parties' right to be heard on costs
Switzerland | July 28 2011

In a recent case the Court of Arbitration for Sports panel had expressly invited the parties to file a submission on costs before a given deadline. However, the panel issued its final award, including a section on arbitration costs, before the deadline had passed. Following a challenge by one of the parties, the judges annulled the part of the award on costs.

Validity of conventional waiver of judicial challenge against arbitration awards
Switzerland | July 14 2011

The Supreme Court has recently issued a decision relating to the validity of the conventional waiver of judicial challenges against Swiss international arbitration awards. Nevertheless, the best advice remains for parties intending to waive some or all the judicial challenges against an international award to be issued in Switzerland to do so in a clear and explicit contractual provision.

Court clarifies position on additional awards and prayers for relief
Switzerland | May 05 2011

In a recent decision the Supreme Court confirmed that that it is possible to bring set-aside proceedings against additional awards, including refusals to issue additional awards. The court also confirmed that a request for an additional award has no impact on other available post-award mechanisms and provided clarification on the issue of prayers for relief.

Supreme Court rules on prior involvement of arbitrators
Switzerland | March 17 2011

The Swiss Supreme Court has ruled that, in principle, it is admissible for an arbitrator to be involved in various stages of an arbitral process without this fact alone constituting sufficient grounds to question that arbitrator's independence and impartiality.

Independence and impartiality of party-appointed arbitrators
Switzerland | February 17 2011

In a recent decision, the Supreme Court held that the chairman and party-appointed arbitrators must comply with the same requirement of independence and impartiality, that these requirements are no less stringent in sports arbitration proceedings than they are in commercial arbitrations and that the Supreme Court has jurisdiction to order the removal of an arbitrator further to a successful challenge.

When an offer to arbitrate is binding on the offering party
Switzerland | November 18 2010

Consent to arbitrate is the fundamental basis for arbitration. Without this, arbitrators lack jurisdiction. In the event of a dispute as to the existence of an arbitration agreement, the arbitral tribunal must interpret the parties' declarations based on general principles of contract law. This also applies to sport arbitration, which has become so common that it sometimes leads to a misconception that all sports-related disputes must be arbitrated.

International award annulled on grounds of procedural public policy infringement
Switzerland | July 29 2010

A recent case represents the first time that the Supreme Court has annulled an international arbitration award on procedural public policy grounds according to Article 190(1)(d) of the Private International Law Act. However, the importance of the case should not be overstated, since it relates to a particularity of the International Federation of Association Football's dispute resolution mechanism.

No immediate review of arbitral interim measures
Switzerland | May 27 2010

A clear line has emerged in Swiss arbitration law and practice with regard to the type of arbitral decisions that can be challenged before the Supreme Court and the grounds on which this can be done. The Supreme Court has now excluded the possiblity of an immediate challenge of interim measures issued by arbitral tribunals.

Supreme Court: arbitrators' broad discretion to construe contractual concepts
Switzerland | April 29 2010

In construing a test for material breach of a contract, an arbitral tribunal drew on the practice prevailing under the UN Convention on Contracts for the International Sale of Goods and the UNIDROIT Principles of International Commercial Contracts. The Supreme Court has now upheld this approach.

Arbitration Agreements and Piercing the Corporate Veil
Switzerland | November 05 2009

In a recent case, the Supreme Court relied on the principle of piercing the corporate veil in order to take into consideration the conduct of the non-signatory in another proceeding when determining whether the extended arbitration agreement should be disregarded under Article 7 of the act.

The Uneasy Relationship between Arbitration and Bankruptcy
Switzerland | July 30 2009

A recent Supreme Court decision on a dispute referred to arbitration regarding an agreement between telecommunications entities in Switzerland, Poland and Germany will revive the longstanding debate surrounding the uneasy relationship between arbitration and bankruptcy.

Recognition of a Foreign Award: When is an Award Binding?
Switzerland | May 14 2009

A recent Supreme Court decision has clearly established under Swiss arbitration law that an ex lege suspensive effect to extraordinary means of judicial review would constitute no bar to the recognition and enforcement of a foreign award in Switzerland. An express judicial decision granting or confirming the suspensive effect of the proceedings remains necessary to that effect.

Expert Determination and Arbitration: An Uneasy but Necessary Distinction
Switzerland | February 19 2009

The Swiss Supreme Court recently ruled that when an expert determination agreement coexists with an arbitration agreement, parties intending to submit to the expert legal disputes arising in the context of the expert determination must expressly state this intention in the expert determination agreement (or presumably in the terms of reference of the expert).

Arbitration Clause Extended to Non-signatories in Case of Performance Guarantee
Switzerland | December 11 2008

In a dispute arising from a construction agreement between a Qatar-registered contractor and a Cypriot subcontractor, the Supreme Court recently ruled that where a guarantor takes over a secured debt, the arbitration agreement regarding the debt should, in principle, also be transferred. However, no such transfer applies to other kinds of security.