Arbitration & ADR, Tavernier Tschanz updates


Contributed by Tavernier Tschanz
State-owned entity's consent to arbitrate does not bind state – in principle
  • Switzerland
  • 19 December 2019

According to a recent Supreme Court decision, the fact that a party to an arbitration agreement is fully owned by a state is insufficient grounds to have that agreement extended to said state. Therefore, an arbitration agreement concluded by a state-owned entity does not necessarily bind the state itself. In order to do so, the arbitration agreement must be extended to the state.

Supreme Court annuls award for second time in same arbitration dispute
  • Switzerland
  • 29 August 2019

In principle, if an application for an annulment of an arbitral award is upheld, the Supreme Court may cancel only the award (the so-called 'cassatory' nature of the setting aside proceeding). However, as shown by a recent decision, the Supreme Court's findings underlying a cancellation for the violation of a party's right to be heard seem to qualify as directions for the arbitral tribunal which must remake the decision.

Award upheld despite violation of right to be heard
  • Switzerland
  • 09 May 2019

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.

Award partially set aside due to tribunal's unexplained choice between two contradictory findings
  • Switzerland
  • 21 February 2019

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.

Arbitral award against foreign state requires sufficient domestic connection with Switzerland
  • Switzerland
  • 20 December 2018

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.

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