File Name: international arbitration law and practice in switzerland .zip
A convenient, neutral location, with a long-standing tradition of arbitration, arbitration-friendly legislation, arbitration-supportive courts, and an exemplary infrastructure — for all of these reasons, parties often choose Switzerland as their preferred seat of arbitration. Switzerland continues to therefore play a leading role in the field of arbitration. Keeping in line with the first edition, this second edition describes in detail each phase of arbitral proceedings, from drafting the arbitration clause to challenge and enforcement of the award.
A number of leading books on international arbitration have been made available online in recent years, providing a large virtual library that may be easily consulted.
ICLG - International Arbitration Laws and Regulations - Switzerland covers common issues in international arbitration laws and regulations — including arbitration agreements, governing legislation, choice of law rules, selection of arbitral tribunal, preliminary relief and interim measures — in 34 jurisdictions. This Chapter is currently undergoing slight revision to incorporate case law and add some novel aspects, probably entering into force in The respective text is in italics. Article PILA provides that the arbitration agreement must be in text form and must comply as to substance with one of three sets of potentially applicable laws.
For more than a century, Switzerland has been one of the preferred venues for hosting international arbitrations. The Swiss Arbitration Law — which is not based on the UNCITRAL Model Law although there are no fundamental differences — gives paramount importance to party autonomy for most issues and, in the absence of an agreement between the parties, allows for wide discretion of the arbitral tribunal.
The Swiss Arbitration Law is currently under revision see last chapter for further information on the revision.
As Switzerland withdrew its reciprocity reservation in , the recognition and enforcement of awards rendered by an arbitral tribunal seated in a non-member state of the New York Convention is also governed by the New York Convention. There are different arbitration and arbitration-related institutions active in Switzerland. The Swiss Rules, initially adopted in , were based on the UNCITRAL Arbitration Rules, to which changes and additions necessary for institutional arbitrations, as well as to reflect modern practice and comparative law in international arbitration, have been made.
The Swiss Rules were revised and modernised in A remarkable feature of the Swiss Rules is that the arbitral tribunal has jurisdiction to hear a set-off defence even if the relationship out of which the defence is said to arise is not within the scope of the arbitration clause, or falls within the scope of another arbitration agreement or forum-selection clause article 21 5 Swiss Rules.
If the amount in dispute does not exceed CHF 1 million, the Swiss Rules foresee an expedited procedure where the award shall be rendered within six months from the date on which the file was transmitted to the arbitral tribunal by SCAI article 42 Swiss Rules.
Of course, the parties may also agree on the application of the expedited procedure rules in the event of a larger amount in dispute. The CAS provides for services in order to facilitate the settlement of sports-related disputes through arbitration and mediation by means of procedural rules adapted to the specific needs of the sports world.
In terms of form, an arbitration agreement is valid if it is made in writing, by telegram, telex, telefax or any other means of communication including email which permits it to be evidenced by text article 1 PILA.
The arbitration agreement can also be contained in by-laws of a company or in general terms and conditions. Even an exchange of drafts containing an arbitration clause during contract negotiations may suffice to fulfil the form requirement.
Under Swiss Arbitration Law, any disputes involving an economic interest may be the subject matter of an arbitration article 1 PILA. Accordingly, all claims with a financial value for one of the parties are, in principle, arbitrable. Therefore, disputes regarding intellectual property rights, annulment of decisions of corporations or associations, competition law, etc.
Swiss Arbitration Law recognises the doctrine of separability principle of autonomy of the arbitration clause or doctrine of severability by stating that the arbitration agreement cannot be contested on the ground that the main contract is not valid article 3 PILA. The arbitral tribunal shall itself decide on its jurisdiction article 1 PILA; principle of competence-competence.
It shall decide on its jurisdiction notwithstanding any potential action on the same matter between the same parties already pending before a state court or another arbitral tribunal, unless there are serious reasons to stay the proceedings article 1 bis PILA. In principle, the arbitral tribunal is only obliged to examine its own jurisdiction if a party has raised an objection in this regard.
Such a plea of lack of jurisdiction must be raised prior to any defence on the merits article 2 PILA. It follows that, as a matter of principle, third parties are neither bound by an arbitration agreement nor can they rely thereon. This general rule is subject to a number of exceptions. The parties may, directly or by reference to rules of an arbitral institution, determine the arbitral procedure; they may also submit the arbitration procedure to a procedural law of their choice article 1 PILA.
If the parties have not determined the procedure, the arbitral tribunal shall determine it to the extent necessary article 2 PILA. Regardless of the procedure chosen, the arbitral tribunal has to ensure the equal treatment of the parties and their right to be heard in adversarial proceedings article 3 PILA. Swiss law does not stipulate how proceedings have to be initiated. In the absence of an agreement in this regard, the claimant can start the proceeding by appointing its party-appointed arbitrator and request the respondent to do the same.
If need be, assistance from a state court is available for constitution of the arbitral tribunal. If the place of arbitration has not been determined by the parties or by the arbitral institution, it shall be fixed by the arbitral tribunal article 3 PILA. Also, the language shall be determined by the arbitral tribunal, failing an agreement of the parties. The arbitral tribunal shall itself conduct the taking of evidence article PILA.
The parties may agree on the procedural rules that the arbitral tribunal shall follow for the taking of evidence, directly or indirectly by reference to arbitration rules. Otherwise, the arbitral tribunal has wide discretion in this regard.
Often, arbitral tribunals seek guidance in, but will not see themselves bound by, the IBA Rules on the Taking of Evidence in International Arbitration. Accordingly, it is common that the parties are requested to file written witness statements and that counsel will examine the witnesses in the hearing. How the recently adopted Prague Rules Rules on the Efficient Conduct of Proceedings in International Arbitration will come into play in arbitration in Switzerland remains to be seen.
While the right to be heard includes the right to submit evidence and to request appropriate evidence-taking measures, an arbitral tribunal is allowed to refrain from assessing evidence presented by a party if the presented evidence is unfit to support the alleged fact, or if the fact to be proven by the evidence is already sufficiently established by other evidence and the arbitral tribunal concludes that the additional evidence would not change its assessment.
While hearings are usually held in practice, Swiss Arbitration Law does not require this. The hearing usually includes opening statements as well as witness and expert examinations. Closing statements are frequently replaced with post-hearing briefs filed after the hearing. If the assistance of a state court is necessary for the taking of evidence, the arbitral tribunal, or a party with the consent of the arbitral tribunal, may request the assistance of the state court at the seat of the arbitral tribunal article 2 PILA.
The court at the place of arbitration also has jurisdiction for any further judicial assistance article PILA. In practice, interventions of Swiss courts are very rare. Procedural orders made by an arbitral tribunal cannot be challenged before Swiss courts. Arbitrators are also not limited by the legal submissions of the parties and can apply other legal provisions or principles for their decision.
Otherwise, such surprise might constitute a violation of the right to be heard. Swiss Arbitration Law is silent on the issue of confidentiality. While arbitrations in Switzerland are considered to be private and not open to the public, it is not settled yet whether and to what extent arbitration proceedings are confidential.
Under the Swiss Rules, the parties, arbitrators, tribunal-appointed experts, the secretary of the arbitral tribunal and the SCAI undertake to keep confidential all awards and orders as well as all materials submitted by another party in the framework of the arbitral proceedings article 44 Swiss Rules. There are no restrictions under Swiss Arbitration Law as to who may act as an arbitrator. The arbitrator must be and remain throughout the proceedings independent and impartial and should meet the qualifications agreed upon by the parties article 1 PILA.
If the parties have not agreed on the number of arbitrators, the arbitral tribunal shall consist of three members. If expedited proceedings under the Swiss Rules apply, generally only one person will sit as arbitrator.
The arbitrators are to be appointed in accordance with the agreement of the parties article 1 PILA , be it directly as per the arbitration agreement or by way of reference to an institutional rule containing provisions on the appointment of the arbitrator s.
Absent such an agreement or reference, the court at the place of arbitration has jurisdiction to appoint arbitrators article 2 PILA unless a summary examination shows that no arbitration agreement exists between the parties article 3 PILA. An arbitrator may only be challenged if she or he does not meet the qualifications agreed by the parties, if the rules of arbitration agreed by the parties provide for a ground for challenge, or if circumstances exist that give rise to justifiable doubt as to her or his independence or impartiality article 1 PILA.
A person asked to take the office of an arbitrator must disclose any circumstances that might raise reasonable doubts about her or his independence or impartiality. This duty continues throughout the proceedings. Any ground for challenge must be notified to the arbitral tribunal and the other party without delay article 2 PILA. The failure to timely challenge the arbitrator will result in the forfeiture of the right to challenge the arbitrator.
Absent an agreement of the parties to the contrary, the court at the place of arbitration has jurisdiction to decide challenges of arbitrators article 3 PILA. The decision of the court is final and cannot be appealed. However, such decision can be challenged indirectly in setting aside proceedings arguing an improper constitution of the arbitral tribunal.
Even though the IBA Guidelines on Conflicts of Interest in International Arbitration are not binding, unless agreed by the parties, these rules play an increasing role in practice. Swiss Arbitration Law is silent on the issue of immunity of arbitrators from liability. According to the majority view of legal doctrine, arbitrators may only be held liable in case of wilful intent or gross negligence.
Unless the parties have agreed otherwise, the arbitral tribunal as well as the state courts have a concurring jurisdiction to order provisional or conservatory measures. Swiss Arbitration Law currently contains no express regulation of emergency arbitrator proceedings, i. Under the Swiss Rules, urgent interim relief can be requested from an emergency arbitrator unless the parties have agreed otherwise article 43 Swiss Rules.
Swiss Arbitration Law does not contain a specific list of interim measures which may be ordered by an arbitral tribunal. Arbitral tribunals have wide discretion as to the contents of provisional measures.
While there has been a debate as to which measures can be granted with regard to the securing of monetary claims, the current understanding seems to be that monetary claims can be secured in a variety of forms, including freezing orders ad personam , deposits of money in escrow, interim payment orders, etc.
However, the attachment of assets ad rem as foreseen in the Swiss Debt Enforcement and Bankruptcy Act is considered not to fall within the authority of an arbitral tribunal. Security for costs, i. It is controversial in Swiss legal doctrine whether anti-suit or anti-arbitration injunctions may be ordered by the arbitral tribunal.
If a party does not voluntarily comply with the provisional measures ordered by the arbitral tribunal, the arbitral tribunal may seek the assistance of the courts article 2 PILA. It is the prevailing view that the order of interim measures of an arbitral tribunal cannot be combined with a threat of public-law or criminal-law sanctions in case of non-compliance, in particular according to article Swiss Criminal Code.
The award has to be rendered in conformity with the rules of procedure and in the form agreed by the parties. In the absence of such an agreement, the arbitral award shall be rendered by a majority or, in the absence of a majority, by the chairperson alone article PILA. The award has to be in writing, supported by reasons, dated and signed.
The signature of the chairperson is sufficient article PILA. The parties may agree that no reasons are to be given. Swiss Arbitration Law does not stipulate any time limit for the rendering of the award.
The Swiss Rules only stipulate a time limit for the rendering of the award in expedited proceedings, in which the award shall be made within six months from the date on which the SCAI secretariat transmitted the file to the arbitral tribunal article 42 1 d Swiss Rules.
Swiss Arbitration Law is silent on the allocation and recovery of arbitration costs. Absent any agreement of the parties, the arbitral tribunal has a wide discretion in this regard. Late payment interest is a substantive law issue under Swiss law. If Swiss law is the law applicable to the merits of the case, pre- and post-award late payment interest can be awarded.
Challenges of an arbitral award must be filed with the Swiss Federal Supreme Court within 30 days from the notification of the arbitral award to the parties. The proceedings are very streamlined and the Swiss Federal Supreme Court renders its decision on average in about seven months from the date of the award.
Unless the applicable regulations do not require the original copy of the award to be sent to the parties, the notification of the award by telefax or email does not trigger the day time limit for challenging the award. Only awards final or interim can be challenged, not procedural orders. Whether a decision qualifies as an award or procedural order depends on its content and not on the labelling by the arbitral tribunal as the former or the latter.
Due to the very limited grounds for challenging an award and the arbitration-friendly policy of the Swiss Federal Supreme Court, the success rate in set-aside proceedings is very low. The parties may exclude the possibility to challenge the arbitral award by express statement in the arbitration agreement or a subsequent written agreement provided that none of the parties has its domicile or habitual residence or its place of business in Switzerland article 1 PILA.
While Swiss Arbitration Law is silent in this regard, the Swiss Federal Supreme Court has held that arbitral tribunals may correct or interpret arbitral awards upon request of a party. Such a request for correction or interpretation of the award does not interrupt the time limit for the challenge of the award with the Swiss Federal Supreme Court.
Guide to International Arbitration 5 neutral dispute resolution e. Confidentiality: Although the degree of confidentiality afforded by the arbitration law of different jurisdictions absent express provision by the parties varies, there. It contains a systematic and concise treatment of all aspects of the arbitral process, including international arbitration agreements, international arbitral proceedings and international arbitral ivmarkt. It was touted as updating the law of. International Arbitration Law and Practice, 3rd edition elaborates new concepts such as a definition of international arbitration based on procedural law different from transnational law and a doctrine the tronc commun doctrine to identify the applicable substantive law on disputes between parties belonging to different countries. Download full-text PDF with unrivalled experience of international arbitration law and practice - Provides a thorough review of the foundations of international arbitration law and a detailed.
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For more than a century, Switzerland has been one of the preferred venues for hosting international arbitrations.
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Ranking in Recht. Oxford University Press CHF Add to basket. Download, available immediately. Cover Text This book expounds the theory of international arbitration law. It explains in easily accessible terms all the fundamentals of arbitration, from separability of the arbitration agreement to competence-competence over procedural autonomy, finality of the award, and many other concepts.
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International commercial disputes are often resolved by arbitration before arbitration tribunals. Our Team assists and represents you in domestic and international arbitration proceedings and related proceedings before state courts. Some of our lawyers are regularly appointed as arbitrators. We also advise and assist you in other forms of alternative dispute resolution processes, such as mediation. Some of our team members are certified mediators. Marcel Lustenberger and Bernard Lachenal are the practice heads.
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