We are happy to report that the latest issue of the ASA Bulletin is now available and includes the following articles and cases:
In his message, ASA President, Felix DASSER addresses the changes brought about by the COVID-19 pandemic and calls on the arbitration community to cooperate to serve the users’ needs.
Executive Director and General Counsel of the Swiss Chambers’ Arbitration Institution (SCAI), Caroline MING, and Christian IOVENE present the advantages and benefits of the revised Swiss Rules of Mediation (2019) in light of the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention).
Bernhard BERGER provides practical guidance on the do’s and don’ts, pitfalls and challenges of conducting arbitral proceedings before investment treaty tribunals seated in Switzerland in light of his survey on the case law of the Swiss Federal Supreme Court relating to investment treaty awards (see ASA Bull. 2020/1 for Part I of his article).
Hans-Ueli VOGT, Patrick SCHMIDT, Schiedsklauseln in Vereinsstatuten. Bemerkungen zum Bundesgerichtsurteil 5A_1027/2018 vom 22. Juli 2019 und zur Revision des 12. Kapitels des IPRG und des Aktienrechts (Teil II)
Hans-Ueli VOGT and Patrick SCHMIDT address the material and formal validity as well as the necessary and admissible content of clauses contained in the articles of an association or corporation further to a recent decision of the Swiss Supreme Court on this issue (see ASA Bull. 2020/1 for Part I of their article).
Jörg RISSE discusses the role of a shadow arbitrator, his/her interaction with counsel and added value for the arbitration.
Nobumichi TERAMURA submits the alleged uncertainty arising from the power of arbitrators to decide ex aequo et bono is largely exaggerated and explores the theories (and values) of arbitration underpinning arbitrators’ concept and sense of fairness.
Ole JENSEN presents a new approach to the appointment of tribunal secretaries, namely a formal appointment process culminating in ‘Tribunal Secretary Terms of Appointment’.
Oliver MARQUAIS and Alain GREC shed light on the activity of third-party funders and explain why Luxembourg, the second largest asset management centre worldwide, offers a highly suitable regulatory framework and attractive investment vehicles to third-party litigation funders.
Drawing on the origins of soft law in public international law, where the concept originated, as well as more recent academic debate in that field, Daniel GREINEDER and Anastasia MEDVEDSKAYA examine its legitimacy and efficacy in international arbitration.
DECISIONS OF THE SWISS FEDERAL SUPREME COURT
- 4A_342/2019 of 6 January 2020 [Request to set aside (ICC) award – Group of contracts only partially executed – Extension of arbitration clause in a signed contract to disputes concerning unsigned contracts]
- 4A_143/2018 of 4 April 2018 [Request to set aside award rendered by the conciliation commission for rental disputes (Art. 361(4) Federal Code of Civil Procedure)]
- 4A_386/2018 of 27 February 2019 [Power to sign arbitration agreement – Jurisdiction denied]
- 4A_597/2019 of 17 March 2020 [Revision – Expert report established after award was rendered]
- 4F_8/2018 of 14 March 2018 [Language of revision request before Swiss Supreme Court]
- 4A_386/2015 (142 III 521) of 7 September 2016 [Revision of arbitral award – Subsequent discovery of ground for challenge of arbitrator – Arbitrator’s law firm part of a network of law firms, one of which advised an affiliate of one of the parties to the arbitration]
- 4A_539/2018 of 27 March 2019 [Set-off defence not mentioned in award – Right to be heard]
- 4F_7/2019 of 27 August 2019 [Request for revision of Supreme Court decision on request to set aside a domestic arbitral award]