In international arbitration proceedings in Continental Europe, particularly in Germany but also in Switzerland and other countries, it has become increasingly popular for arbitral tribunals to get involved and even take active steps in facilitating a settlement between the parties during the course of a pending arbitration. This raises a number of issues, and parties…
In a recent decision dated 26 October 2009 (4A_428/2009), the Swiss Federal Tribunal held that a party that enters into a procedural agreement in parallel state court proceedings following unsuccessful compulsory judicial conciliation does not waive its right to arbitration when that party does not proceed on the merits without making any objections.
In two recent decisions, the Swiss Federal Supreme Court rejected petitions for annulment and revision of an arbitral award by the Court of Arbitration for Sport. The decisions highlight the importance of raising new facts in arbitral proceedings without delay and as explicitly as possible.
In a decision of 25 August 2009 (4A_160/2009), the Swiss Federal Supreme Court held that where a claimant by piercing the corporate veil can assert a contractual claim against the majority shareholder, all rights and obligations from the respective agreement, including the arbitration clause, become binding on the majority shareholder, thus precluding the jurisdiction of…
Summary In a decision of 6 October 2009 (4A.596/2008), the Swiss Federal Tribunal granted revision of a final international arbitral award that was influenced by fraud. This is the first time since the entry into force of the Federal Statute on the Federal Tribunal in 2007, and only the second time since the entry into…
In a decision of 23 June 2009 (4A_62/2009), the Swiss Federal Supreme Court held that the right to be heard is not violated where an arbitral tribunal bases its decision on a written submission of a third party and the parties to the proceedings had enough time to comment on such written submission.By letter of…
The Swiss Rules of International Arbitration (the “Swiss Rules”) entered into force on 1 January 2004. These rules were originally adopted by the Chambers of Commerce and Industry of Basel, Bern, Geneva, Ticino, Vaud and Zurich, and, most recently, Neuchâtel (the “Chambers”).In the past, these Chambers each had their own, different set of arbitration rules…
In this case, the Swiss Federal Supreme Court decided that the right to be heard (art. 182 para. 3 of the Swiss Federal Act on International Private Law, “PILA”) does not encompass a right of the parties to be specifically heard with regard to the legal qualification of the facts they had introduced into the…
In the same arbitration proceedings, the Swiss Federal Supreme Court had to decide twice -albeit based on different grounds – whether facts discovered after the issue of an award (so called “nova”) may entail the amendment of the rendered award. In these decisions the Swiss Federal Supreme Court had the opportunity to restate its rigorous…
Under the applicable Swiss law, fees and charges arising in connection with the exercise of functions of arbitration are exempted from VAT. Specifically, the respective section of Article 23(1) of the Swiss Federal Act of 2 Sept. 1999 on Value Added Tax (“VATL”) reads as follows: “[…] For services which they perform in sovereign right,…
In a Swiss Chambers for Arbitration and Mediation case decided in May last year and reported in ASA Bulletin, vol. 26, no. 4, p. 731, the Arbitral Tribunal admitted a counterclaim submitted with the rejoinder based on Article 20 Swiss Rules. The Swiss Rules do not contain a provision as we find in Article 19…
Under Swiss arbitration law, the validity of an arbitration agreement is in general subject to formal and substantive requirements (Article 178 of the PILA). With regard to the formal validity, Article 178(1) of the PILA requires the arbitration agreement to be in writing and allows the parties to use any means of communication which permits…
In a decision dated 5 December 2008 (4A_376/2008), the Swiss Federal Court (“SFC”) had the opportunity to address two legal topics in the context of international arbitration: The first topic was the interpretation of a pathological arbitration clause. B___ Ltd. (“Claimant-Company”) had initiated arbitration proceedings in Lugano under the ICC rules against A.___ (“Respondent”) on…
In a recent decision of 22 January 2009 (4A_424/2008), the Swiss Federal Supreme Court had to consider an appeal against a decision of the Court of Arbitration for Sport (CAS). In the run-up to the 2008 Summer Olympics in Beijing, a qualifying competition was held for the women’s Olympic hockey tournament. The Spanish team won…
Article 186 of the Swiss Private International Law Act (“PIL Act”) provides as follows: “1. The arbitral tribunal shall decide on its own jurisdiction. 1bis. It shall decide on its jurisdiction notwithstanding an action on the same matter between the same parties already pending before a state court or another arbitral tribunal, unless there are…
In its decision of 9 December 2008 (4A_403/2008), the Swiss Federal Supreme Court took the opportunity to clarify its practice regarding the enforcement of arbitral awards that are suspended at the foreign seat of arbitration. In the case before the Swiss Federal Supreme Court, Company Y requested recognition in Switzerland of an arbitral award rendered…
In a recent decision dated 10 October 2008 (4A_224/2008), the Swiss Federal Supreme Court found an arbitral tribunal competent to decide on a party’s request that its contractual partner should refrain from calling a bank guarantee. A Turkish company active in the production of fertilizer (X A.S.) had concluded a construction contract under which its…
In its decision of 6 October 2008 (5A_201/2008), the Swiss Federal Supreme Court had another opportunity to address its practice regarding conflicts of interests of part-time judges and arbitrators. It had stated in earlier decisions that a judge is deemed to be biased if he or she acts or recently acted as counsel for one…
