Swiss Supreme Court – Case Law on Arbitration
Switzerland is one of the few jurisdictions where any application to set aside an award must be brought directly to the country’s highest court. Very limited grounds are available and applications rarely succeed. The Swiss Supreme Court will render its decision within four months on average. Setting aside proceedings usually do not prevent the award from being enforced in the meantime. This reduces the risk of costly and lengthy post-arbitration litigation.
An English translation of the Case law of the Swiss Supreme Court regarding international arbitration is available on: http://www.swissarbitrationdecisions.com. Decisions of the Supreme Court are published in their original language (French, German or Italian) on the Supreme Court website.
Another advantage of Swiss Arbitration law combined with the Swiss Rules is the absence of any significant disruption to the arbitral proceedings in case an arbitrator is challenged on the basis of lack of independence and impartiality. The decision on the challenge is taken by the Arbitration Court and a party may only raise the issue before the State courts by seeking to have the award set aside by the Swiss Supreme Court at the end of the arbitration.
If the seat of the arbitration is in Switzerland, the parties will enjoy the many advantages offered by Swiss arbitration law. Swiss arbitration law is easily accessible and available in English, French, German, Italian.
Swiss Rules - Selected Case Law
Art. 4(1) Swiss Rules – Consolidation of Proceedings
Art. 4(1) of the Swiss Rules provides:
"Where a Notice of Arbitration is submitted between parties already involved in other arbitral proceedings pending under the Rules, the Court may decide, after consulting with the parties and any confirmed arbitrator in all proceedings, that the new case shall be consolidated with the pending arbitral proceedings.
The Court may proceed in the same way where a Notice of Arbitration is submitted between parties that are not identical to the parties in the pending arbitral proceedings.
When rendering its decision, the Court shall take into account all relevant circumstances, including the links between the cases and the progress already made in the pending arbitral proceedings. Where the Court decides to consolidate the new case with the pending arbitral proceedings, the parties to all proceedings shall be deemed to have waived their right to designate an arbitrator, and the Court may revoke the appointment and confirmation of arbitrators and apply the provisions of Section II (Composition of the Arbitral Tribunal)."
The relevant case law of the Arbitration Court shows the following main trends:
Consolidation has for instance been ordered in case of:
- Simultaneous requests for arbitration (Arbitral tribunal not yet constituted); same parties; similar contracts of the same date (sale of steel), identical arbitration clauses.
- Subsequent requests for arbitration; same contract; same claimant; same defendants, plus additional defendants.
- Subsequent requests for arbitration, same arbitrators; in part same contracts and underlying facts; different parties, but all "involved" in the dispute and belonging to the same group of companies on each side.
- Agreement of all parties involved (5 cases): e.g. subsequent requests for arbitration, same arbitrators; claims based at least in part on the same contracts and underlying facts.
No consolidation has for instance been granted in case of:
- Subsequent requests for arbitration; same underlying investment contract between 4 + 1 individuals and a bank; different arbitration clauses (English/Italian; 3 arbitrators) out of investment contract and subsequent settlement agreement, respectively; late stage of the first arbitration (preliminary award issued; post-hearings briefs expected shortly).
- One single request for arbitration, "blending" three separate contracts involving 4 Parties (grouped differently under each contract), Swiss and Italian law and setting out three different arbitration clauses (with different seats: Lugano and Bologna): a request for consolidation requires at least two separate proceedings to be consolidated, one of which is already pending.
- Different arbitration clauses: 3 vs. 1 arbitrator, the latter to fulfill specific requirements (solicitor, 10 years of experience in construction law).
Art. 11 Swiss Rules - Challenge of an arbitrator
Art. 11 Swiss Rules provides:
"1. A party intending to challenge an arbitrator shall send a notice of challenge to the Secretariat within 15 days after the circumstances giving rise to the challenge became known to that party.
2. If, within 15 days from the date of the notice of challenge, all of the parties do not agree to the challenge, or the challenged arbitrator does not withdraw, the Court shall decide on the challenge.
3. The decision of the Court is final and the Court has no obligation to give reasons."
The relevant case law of the Arbitration Court shows the following main trends:
The webpage of the law firm of the co-arbitrator nominated by respondent mentioned respondent's group, respectively the family owning that group, among the high profile clients of the law firm.
The grounds put forward by the challenging party in the following cases have not been considered sufficient or sufficiently proved to warrant the challenge of the pertaining arbitrator.
a) Perceived bias due to orders/actions of the arbitrator(s)
- Respondent alleged that the arbitrator had acted as a defending lawyer for claimant during the hearing, asking questions that in effect contained legal advice. Moreover, respondent submitted that the arbitrator had pointed the claimant to specific evidence.
- The arbitral tribunal ordered respondent to file a contract and thus gave respondent the possibility to substantiate its counterclaim after the "cut-off date". The extant specific Procedural Rules issued by the arbitral tribunal, however, allowed for such an order.
- In proceedings conducted under the Expedited Procedure rules (Art. 42 Swiss Rules), respondent in its statement of defense voiced (but did not formally file) a request to stay. The sole arbitrator anticipated that he would dismiss a formal request to stay.
b) Professional relationships of the arbitrator
- The sole arbitrator had previously been involved in a dispute not involving the respondent, but a company in which the respondent had a substantial (minority) shareholding. This previous case had been concluded more than three years before the acceptance of the appointment (see Orange List of the IBA Guidelines, Section 3.1.2.). The actual case did not have any factual connection whatsoever to the previous case.
- The arbitrator nominated by respondent filed a qualified statement of independence stating that (i) two of his partners had acted in their capacity as notaries public for a company belonging to the same corporate group as the respondent four years before his appointment, and that (ii) one of his partners had provided legal advice to one of these companies by way of a legal opinion, which had been provided without the discussion of any points of fact. Upon challenge, these facts were not considered sufficient to disqualify the arbitrator.
c) Personal relationships of the arbitrator
- Dispute between a Cyprus company with branch in Lugano (represented by counsel based in Lugano) and an Iranian individual. The appointment of a Swiss arbitrator, whose mother tongue is Italian, is no reason for a challenge of that arbitrator.
- Serious dispute, which had arisen between arbitrator X and counsel Y (representing the party that raised the challenge) in an earlier arbitration in which they had appeared as opposing counsel is no reason for a challenge.
Art. 16.1 Swiss Rules - Determination of the Seat of the Arbitration
Art. 16.1 of the Swiss Rules provides:
"If the parties have not determined the seat of the arbitration, or if the designation of the seat is unclear or incomplete, the Court shall determine the seat of the arbitration, taking into account all relevant circumstances, or shall request the arbitral tribunal to determine it."
The relevant case law of the Arbitration Court shows the following main trends:
1. Reference to the pre-existing arbitration rules of the various Swiss Chambers of Commerce
• A reference to the International Arbitration Rules of the Zurich Chamber of Commerce includes a reference to its Art. 6, providing for Zurich as the seat of arbitration.
• Geneva is the place of arbitration in cases in which a reference to the former arbitration rules of the Geneva Chamber of Commerce is made, because Art. 3 of said rules provided that Geneva shall be the seat, absent an agreement by the parties to the contrary.
2. Reference to a specific city in Switzerland
When an explicit reference to a specific city in Switzerland (or abroad) is set out in the arbitration agreement, then this city generally becomes the seat of the arbitration. See e.g.:
"Dispute Resolution: Any disputes to be settled by arbitration in the Zurich courts"
"For all disputes arising out of this contract, the Arbitration Committee, to be established in Basel (Switzerland), is authorized and the law to be applied is Swiss Law. The Arbitration language is German. The decision of the Arbitration Committee is a judgment in absolute, elimination the right to appeal of the parties".
3. Arbitral Tribunal to determine the seat
Failing any other indication as to the seat or in case of particular ambiguity of the arbitration clause, the decision is generally left to the Arbitral Tribunal:
- "[…] shall be settled by the International Commercial Arbitration Court of the Swiss Confederation in accordance with the rules of this Court and applying the norms of the substantive law of Swiss Confederation"
- "Any dispute arising out of or in connection with this Contract, including any question regarding its existence validity or termination, which the parties fail to resolve amicably, shall be referred and to finally resolved by arbitration under the rules of the Swiss Court of International Arbitration, which rules are deemed to be incorporated in reference into this clause"
- "Any misunderstanding consequent upon this Contract or arising in connection with it, both of the parties will solve in the first place by bilateral agreement. In case of impossibility of reach an agreement, contentious matters will be arbitrated by Arbitration of Exchange due to the Chamber of Commerce of Switzerland by the law and the Legal Order of Switzerland".
- "In case an agreement is impossible, it is provided that both Parties will resort to arbitration. Thus, any dispute arising from the Order will be finally settled under the Rules of Conciliation and Arbitration of the Courts of Geneva, by one or more arbitrators appointed under such rules. The arbitration court thus constituted will meet in Aix-en-Provence and decide without appeal".
Art. 43 Swiss Rules - Emergency Relief
The provision on emergency relief (Article 43) was introduced to the revised Swiss Rules of International Arbitration, in force since 1 June 2012.
Unless the parties have agreed otherwise, a party may apply for emergency relief proceedings even before the arbitral tribunal is constituted. The Arbitration Court will appoint and transmit the file to a sole emergency arbitrator, unless there is manifestly no agreement to arbitrate referring to the Swiss Rules, or it appears more appropriate to proceed with the constitution of the arbitral tribunal and refer the Application to it. The decision on the Application is to be made within 15 days from the date on which the file was transmitted to the emergency arbitrator. It has the same effect as a decision of an arbitral tribunal on interim measures (Art. 26), i.e. it may take the form of an award or may be granted by way of a preliminary order. The decision is binding upon the parties until the arbitral tribunal to be constituted modifies it or renders its final award. However, if no Notice of Arbitration is pending or submitted within 10 days from the receipt of the Application for emergency relief by the Secretariat, any decision of the emergency arbitrator ceases to be binding.
Article 43 of the Swiss Rules provides:
"1. Unless the parties have agreed otherwise, a party requiring urgent interim measures pursuant to Article 26 before the arbitral tribunal is constituted may submit to the Secretariat an application for emergency relief proceedings (hereinafter the "Application"). In addition to the particular set out in Articles 3 (3)(b) to (e), the Application shall include:
- A statement of the interim measure(s) sought and the reasons therefor, in particular the reason for the purported urgency;
- Comments on the language, the seat of arbitration, and the applicable law;
- Confirmation of payment by check or transfer to the relevant account listed in Appendix A of the Registration Fee and the deposit for emergency relief proceedings required by Section 1.6 of Appendix B (Schedule Costs).
- The decision on the Application shall be made within fifteen days from the date on which the Secretariat transmitted the file to the emergency arbitrator. This period of time may be extended by agreement of the parties or, in appropriate circumstances, by the Court. The decision on the Application may be made even if in the meantime the file has been transmitted to the arbitral tribunal. (…)”
Emergency Relief under the Swiss Rules (Art. 43) – An overview after 4 years of practice
Since the emergency relief proceedings were introduced in the Swiss Rules of International Arbitration (the "Swiss Rules") in 2012, a total of seven Applications for emergency relief proceedings have been filed before the SCAI Secretariat. Four cases were filed in 2014, two cases in 2015 and one in 2016. Out of the seven Applications, six resulted in decisions by the Emergency Arbitrator and one Application was terminated at the request of the parties, who proceeded under a normal Swiss Rules arbitration procedure.
Further information about Emergency Relief Proceedings conducted under the Swiss Rules is available here.
First Emergency Arbitrator’s report on Emergency Relief:
On 4 February 2014, the first Application for Emergency Relief was submitted to the Swiss Chambers’ Arbitration Institution by a Swiss company requesting injunctions against a Canadian company under a dispute arising out of a cooperation agreement governed by Swiss law. By noon of the next day, two of the five candidates approached had signalled their availability. A Belgian national was appointed and received the file on 6 February 2014. The emergency arbitrator issued draft procedural rules and a draft provisional timetable and held a conference call with the parties on the next day. The answer to the request for emergency relief was filed on 11 February 2014, the reply on 13 February 2014 and the rejoinder on 15 February 2014.
A hearing took place at the seat of the emergency relief proceedings on 18 February 2014, and the parties filed their statements of costs one day later. The emergency arbitrator issued a decision ruling on the Application for emergency relief on 20 February 2014, partially granting the applicant’s request that the respondent be enjoined from disclosing the contents of the cooperation agreement and from using certain documents, tools, research and analytical techniques said to be the property of the applicant. The applicant’s request that the respondent be enjoined from making further contact with the applicant’s suppliers and that he be permitted to withhold payments received was denied. As to the request for a penalty, the emergency arbitrator found that he did not have jurisdiction to impose a penalty for non-compliance with the nondisclosure order.