Dr. Martin Burkhardt is representing parties in commercial litigation and international arbitration. He is also sitting as arbitrator.
Litigation and International Arbitration, International Legal Assistance, Contract and Commercial, International Private Law, Insolvency and Restructuring
German, English, French
Education and Professional Experience
Swiss Bar Association (SAV), Swiss Arbitration Association (ASA), New York Bar Association, Swiss Chambers' Arbitration Committee
Burkhardt, M., Adaptation of Contracts under Changed Circumstances in Swiss Law Practice: Contracts, Arbitration and Swiss Federal Court Practice, in: St.Gallen Studies of Private, Business and Economic Law, Bern/Stuttgart/Vienna 1996
Under the Civil Procedure Code, the Swiss courts usually take evidence only after the parties have fully pleaded all particulars. The taking of evidence is often preceded by multiple exchanges of written submissions; however, in certain cases, it may be unreasonable to wait until the proceedings have fully developed to take certain evidence. For such cases, Swiss law allows parties to request the so-called 'precautionary taking of evidence'. The Zurich Commercial Court recently issued a decision on one such request.
The Federal Supreme Court recently ruled on at which point the statute of limitation starts to run and what its duration should be. It found that the statute of limitation applicable to the claim for restitution was 10 years and that it started to run on the receipt of each payment by the agent. The issue of statutory interest remained undecided, but now appears much less controversial
The Zurich Commercial Court recently decided that the term 'obligation' according to the Code of Obligations not only includes specific contractual obligations, but may also apply to obligations on other legal bases, provided that they result from a legal transaction which the agent has concluded in its own name but in the interest and for the account of the principal.
The Supreme Court recently denied the competence of the Court of Arbitration for Sport to rule on a case in which a professional ice hockey player refused to undergo a doping test. The decision is unusual in that it sets aside an arbitral award on the basis of the lack of competence of an arbitral tribunal.
Two recent Supreme Court decisions highlight important procedural issues related to the administration of evidence and the right to be heard. As a rule, the party willing to provide new evidence to the Court of Arbitration for Sport proceedings must inform the the court panel of its intentions as soon as possible. If the evidence is yet to become readily available, parties can apply to suspend the proceedings.
The Federal Supreme Court recently rendered a significant ruling on the issue of cost allocation in proceedings initiated by shareholders in the context of a merger which may have repercussions on comparable proceedings. As a result of this decision, purchasers that buy shares shortly before a reorganization in order to gain additional compensation risk bearing the costs risk for claims under Article 105.
Following a landmark Supreme Court decision in 2008 in connection with the insolvency of Swissair and its parent company SAirGroup, avoidance actions have become a broadly discussed issue in Swiss doctrine. Subsequently, a considerable number of decisions have been published relating to such actions. This update summarizes the effects of these new decisions and outlines the litigation aspects of avoidance actions.