The Bulletin in Brief
You can read the Bulletin in Brief from the latest issue of the Bulletin
Vol. 40 (2022), Issue 2
In his message Choosing a Seat? Ten Questions to Ask (on Setting-Aside Proceedings), ASA President Felix DASSER identifies the issues that really matter when assessing how arbitration-friendly seats are in relation to annulment proceedings: the duration of annulment proceedings, their costs and cost allocation, grounds for challenge, confidentiality, the independence of the judiciary, etc. These questions are rarely ever openly discussed – if only because not even the most popular venues would receive top marks on all of these criteria.
Julia JUNG, Investor-State Mediation – A Third Lane on the ISDS Highway?; This article sets out in detail the proposition of investor-State mediation and examines recent developments in the field. The article also sheds light on practicalities such as the agreement to mediate, the necessity of an ongoing consent, timing issues, mediation rules, the process, criteria on how to choose the mediator and mediation counsel, etc.
Bernard HANOTIAU, Leonardo OHLROGGE, 40th Year Anniversary of the Dow Chemical Award; The Dow Chemical award is said to be the origin of the so-called “group of companies doctrine”. The authors recall that, in reality, the Dow Chemical case did not create a basis for extending the arbitration agreement to non-signatory parties irrespective of consent. The arbitrators relied on the parties’ implied consent and found that the non-signatories appeared to be true parties to the arbitration agreements. Accordingly, since its outset, the notion of a group of companies doctrine is a misconception. It is merely a misleading concept obscuring what is in fact the assessment of the parties’ consent.
Johannes LANDBRECHT, Andreas WEHOWSKY, Arbitrating Blockchain and Smart Contract Disputes – Lessons to be Learnt from Commodities and Shipping Arbitration?; The blockchain technology and smart contracts have great potential for increasing efficiency and stability in the business world. The authors submit that arbitration is well suited for resolving disputes arising out of these technologies. They recommend devising mechanisms, partially borrowed from arbitration procedures known in the commodities and shipping industry, to accommodate the specific needs of blockchain and smart contract disputes.
Irma AMBAUEN, Awarding More or Different Than Claimed by the Parties: Arbitral Awards Ultra or Extra Petita; Since 1989, more than 100 attempts have been made to challenge arbitral awards before the Swiss Federal Supreme Court on the grounds of ne ultra petita. This article addresses the three successful challenges and focuses on the question of whether awarding a sum of money in a currency other than that requested by claimant violates the principle of ne ultra petita. Finally, general conclusions are drawn regarding the interpretation of prayers for relief by an arbitral tribunal and the Federal Supreme Court’s competence to review such interpretation.
Charles T. KOTUBY Jr, Alberto POMARI, Do the 2021 Reforms of the Italian Code of Civil Procedure Make Italy a Favorable Seat for International Arbitration?; In late 2021, Italy modernized its arbitration law, reforming key elements of its Code of Civil Procedure that govern domestic and international arbitrations. This article highlights some of the key features of the reform and analyses whether they bring Italy in line with other, preferred arbitral seats.
Nicolas CURCHOD, Judicial Involvement in Arbitration: Towards a Collaborative Approach; Arbitration and litigation have a complex and ambivalent relationship. Largely described as alternatives, competitors, or even opposites, both dispute resolution methods may also prove to be complementary. After decades of attempts to reduce or even eliminate judicial involvement in arbitration, this article argues in favor of an alternative, collaborative approach under which domestic courts are perceived as partners.
Alexander LAUTE, The Arbitration Rules of the Nordic Offshore and Maritime Arbitration Association – A Swiss Perspective; In 2021, the Nordic Offshore and Maritime Arbitration Association revised its arbitration rules and introduced a fast-track procedure to provide Scandinavian parties in particular with an alternative for resolving maritime disputes. This article offers the “Swiss” perspective on the arbitration rules of the Nordic Offshore and Maritime Arbitration Association by comparing these rules with the arbitration rules of the Swiss Arbitration Centre.
Süheylâ BALKAR, Law No. 805’s Effect on Arbitration Agreements; The Law No. 805, enacted in 1926, requires mandatory use of Turkish in economic enterprises. The Law has largely been ignored for a long time. However, for several years now, its application to agreements, including arbitration agreements, drawn up in another language than Turkish, has created complications. This article analyzes the applicability of Law No. 805 to agreements, particularly arbitration agreements.
Swiss Federal Supreme Court Decisions
4A_464/2021 du 31 janvier 2022 [New fact – Allegedly forged document – Public policy]
4A_406/2021 du 14 février 2022 [Sun Yang doping ban – Allegedly missed deadline for appeal against CAS award goes to admissibility, not jurisdiction – Replacement arbitrators not required to allow new pleadings or evidence – Page limitations]
4A_476/2020 vom 5. Januar 2021 [Denial of justice v. res judicata – ECHR not directly applicable]
4A_348/2020 vom 4. Januar 2021 [Award upheld after two previous annulments – Discretionary contract termination found to be valid but triggering damages for abuse of right]
4A_292/2019 vom 16. Oktober 2019 [Permissible contacts between counsel and arbitrator – IBA Guidelines on Conflicts, and on Party Representation]
4A_167/2021 du 19 juillet 2021 [Pacta sunt servanda – Binding force of contracts – Good faith, expropriation without compensation]
Matthias Scherer & Catherine A. Kunz