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Arbitration & ADR
The formal nature of the right to be heard has long been recognised by the Supreme Court. Applied strictly, it entails that an award affected by a violation of such right must be set aside, irrespective of whether the violation affected the outcome of the case. However, the Supreme Court's more recent practice tends to depart from a strict application of the formal nature of the right to be heard and to require the applicant to establish a causal link between the asserted violation and the (adverse) outcome of the case.
The Supreme Court recently set aside an arbitral award issued in a domestic arbitration on the grounds that the arbitral tribunal had drawn consequences from one of two contradictory findings without providing any reasons for its decision. Considering that the test to admit a violation of the right to be heard is the same in domestic and international arbitrations, this decision may be relevant to international arbitration, even though it pertained to domestic arbitration.
The Supreme Court recently dealt with the issue of state immunity in the context of the enforcement of an arbitral award and with the relationship between Swiss procedural law and the New York Convention. It found that state immunity prevents the enforcement of an arbitral award against a foreign state if there is no sufficient connection between the claim and Switzerland, and that this situation does not conflict with Switzerland's obligations under the New York Convention.
The Supreme Court recently rejected a challenge against a partial arbitral award for an alleged violation of the right to be heard and incompatibility with substantive public policy. The case pertained to a contract under which an Austrian company was to supply railway machinery to a Russian company. In its reasoning, the court made a number of considerations which practitioners should bear in mind when challenging an arbitral award.
The Supreme Court recently confirmed its jurisdiction to decide claims secured by a retention right as provided for by Swiss law. The court found that even if the arbitration agreement rather restrictively referred to disputes arising out of the mandate agreement, it had to be understood in good faith as also encompassing disputes in relation to the conclusion and termination of that agreement.
In a recently published decision, the Supreme Court set aside an arbitral award on the grounds that the arbitral tribunal had wrongly accepted jurisdiction. Once the existence of an arbitration agreement is established, its scope and content are broadly construed under the assumption that, if they chose to enter into an arbitration agreement, the parties intended to have an arbitral tribunal with broad jurisdiction.
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.
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.
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.
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.
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".
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
The Swiss Supreme Court has recently ruled that changing the arbitration clause of a framework agreement does not in itself change the arbitration clauses of connected contracts between the same parties if those contracts contain their own arbitration clauses.
Switzerland’s tradition of mediating arbitration cases is reflected in its statutes, court decisions and practice. The law still needs development, such as on questions of independence, waiver and due process where the same person is acting as mediator and arbitrator, but it seems likely that the Supreme Court will enforce 'med-arb' clauses with a practical approach and with regard to the parties' intent.
When a licensor proposed to submit a recent dispute to arbitration, the licensee terminated the contract. The licensor initiated arbitration, but the licensee protested to the arbitral tribunal that it could not proceed because the licensor first had to initiate conciliation proceedings. The final award was in favour of the licensor and the award was challenged before the Supreme Court.
Article 186(1bis) of the Swiss Private International Law Act was added to clear up any uncertainty arising from the Swiss Supreme Court decision in the Fomento Case. It creates greater legal certainty as to what Swiss arbitrators should do when faced with a jurisdictional objection which is already pending before a foreign court.
For the first time the Supreme Court has granted revision of an international arbitral award. The court's acceptance of the revision action resulted in the annulment of the award and a direction to the arbitral tribunal to issue a new award taking into account the newly discovered facts or evidence which the Supreme Court had identified as likely to change the original award.
In a recent decision on an action for annulment of an arbitration award regarding valuable manufacturing know-how, the Swiss Supreme Court refused an application for certain confidentiality protection and invited the applicant to re-apply for certain other confidentiality protection. The court took the opportunity to review a number of aspects of the law on confidentiality of judgments.
The Swiss Supreme Court has held that it will not review competition law matters decided in international arbitration awards. This applies regardless of what arbitrators sitting in Switzerland decide in relation to competition law questions, unless the arbitrators refuse to decide on such questions which a party submits to them.
When parties choose to arbitrate in Switzerland, there is an option available to them which is often overlooked: they can limit - or even exclude altogether - the grounds to challenge awards in court. After several cases in which the Supreme Court found that there was no exclusion agreement, in a recent decision it found one for the first time.
Must interim awards be challenged immediately or only together with the final award? For many years, the answer to this question turned on whether an interim award resulted in 'irreparable harm' to a party. The Swiss Supreme Court recently changed this practice. The answer now depends on whether the interim award is characterized as a partial award or an interlocutory decision.
A recent Supreme Court ruling holds that if the arbitrators wish to decide a dispute on legal grounds that were unforeseen and unforeseeable by the parties, they must give the parties an opportunity to supplement their submissions on that legal issue.
The Swiss Rules of International Arbitration entered into force on January 1 2004, replacing the international arbitration rules issued by the Chambers of Commerce of Basel, Berne, Geneva, Ticino, Vaud and Zurich. They are based on the United Nations Commission on International Trade Law Arbitration Rules, with certain improvements and adjustments to suit institutional arbitration.
The Swiss Supreme Court recently ruled that on the basis of the law chosen by the parties, an arbitration clause can be extended to a third party on the basis of that party's continuous involvement in the execution and performance of the contract. The court expressly reserved its position as to the validity of a similar extension under Swiss law.
The Supreme Court recently confirmed that the arbitrators' independence is not affected by a disagreement about their fees. The fact that the tribunal in this case had to reduce its fees as a result of the claimant's intervention did not mean that the arbitrators had lost their impartiality.
In a recent case the Swiss Supreme Court confirmed that Swiss law on international arbitration does not bar an arbitral tribunal from filling a gap in a contract without having the parties' express permission to do so.
In a recent arbitration an arbitral tribunal made a partial award confirming that one party had standing to claim, but in its final decision it declared the proceedings closed because the claimant was not, in fact, a legal entity. The claimant argued that this contradiction was a violation of public order, but the Supreme Court disagreed.
The Swiss Supreme Court recently refused to set aside an award on the ground that a co-arbitrator had failed to attend the deliberation. It confirmed that a challenge against an arbitrator does not have the effect of automatically staying the proceedings.
A recent case illustrates the practical limit of the separability doctrine, in particular in the case of assignment. The arbitration clause is separable from, but in effect also dependent on, the main contract.
This case involved a bank that refused to pay on a guarantee it had issued without advising the beneficiary of the grounds for its refusal, as contractually required. The tribunal awarded damages against the bank, even though the beneficiary had not claimed damages. The Supreme Court upheld the tribunal's decision.
An employer commenced arbitration proceedings in Geneva even though the contractor had brought a case before the Panama courts to determine whether the arbitration clause was void or had been waived by the parties. The action in Panama was found to limit the arbitral tribunal's jurisdiction.
The Chamber of Commerce and Industry of Geneva recently inaugurated facilities available to hold arbitration hearings in Geneva. The rental charge per day is Sfr700, which includes a fully equipped hearing room suitable for up to 20 people, as well as two breakout rooms for the parties.
In a recent case a claimant challenged an arbitral award on the ground that a tribunal-appointed expert was prejudiced. The Swiss Supreme Court dismissed the challenge because the claimant had waived the objection, as it did not raise the issue immediately upon learning of the grounds.
An ad hoc arbitration tribunal sitting in Geneva, Switzerland, recently found that it had jurisdiction to award the costs of arbitration, while at the same time dismissing the case for lack of jurisdiction. This update considers the implications of this decision.
The Supreme Court recently held that the right to be heard is not violated by arbitrators who refuse to draw inferences from a party's refusal to produce evidence. Also, if a party does not raise a procedural objection immediately, the right to do so is waived.
The International Bar Association has adopted new rules that will create a new uniformity of approach in arbitral proceedings.
An arbitration clause can be severed along with the main contract. However, if the main contract was interrupted due to reasons such as fraud of negligence, then arbitration is still a valid way of settling the dispute.
If a court ruling is objected to in favour of arbitration, the depth of investigation into jurisdiction depends entirely on the location of the dispute.
If the parties in a case being arbitrated in Switzerland cannot settle on a procedure for the challenge, then such a decision falls to the Swiss Supreme Court – against which there is no appeal.
The Supreme Court has Exclusive Jurisdiction to Entertain Applications to Revise International Arbitral Awards, whether Interim or FinalSwitzerland | 27 August 1999
While it is impossible to appeal against a court’s appointment of an arbitrator, a refusal to appoint one may be challenged.