The Bulletin in Brief


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Vol. 40 (2022), Issue 3

In his message Sanctions and the Rule of Law, ASA President Felix DASSER sounds the alarm bell about the decision of Western States, in particular the European Union, to essentially shut down access to justice between Russia and the West, in disregard of the rule of law.

Articles

The ICSID has recently completed a six-year process of consultation with the ICSID members and the public to revise its rules and regulations, which had remained unchanged since they were last revised in 2006. Marlena HARUTYUNYAN takes us through these amendments, which entered in force on 1 July 2022 and are aimed at modernizing the rules based on the already established ICSID practice and providing tools for a more transparent, cost- and time-effective and environmental friendly procedure. (Marlena HARUTYUNYAN, The Revised ICSID Rules: A Further Step Towards Transparency and Efficiency.)

In a recent decision (4A_462/2021), the Swiss Federal Supreme Court tied the duration of the arbitrator’s duty to disclose circumstances which might raise doubts as to the arbitrator’s independence or impartiality to the date of completion of the deliberations rather than to the end of the arbitration proceedings. Hansjörg STUTZER reports on this decision and analyses whether the Supreme Court’s interpretation is still in line with Article 179(6) of the Swiss Private International Law Act. The author also recalls the Supreme Court’s practice relating to the anonymization of the parties’ identities. (Hansjörg STUTZER, The Ongoing Duty to Disclose and the Taciturn Chairwoman. Case Note on Swiss Federal Supreme Court Decision 4A_462/2021.)

The last few years have seen a surge in space activities, with new types of activities emerging, such as space tourism and an increasing number of other types of commercial projects. This is expected to lead, over time, to an uptake of space-related commercial disputes. Emilie MCCONAUGHEY and Nicole CHALIKOPOULOU examine the existing legal framework around space-related activities and explore whether such a framework can harbour the increasing demand of space-related disputes, and if not, what changes could be made, particularly in international arbitration, to address the specificities and complexities of this fast-growing field. (Emilie MCCONAUGHEY, Nicole CHALIKOPOULOU, Space Law and Arbitration. A Not-So-Outlandish Space Odyssey.)

Swiss Federal Supreme Court Decisions

4A_530/2020 du 15 juin 2021 [LCIA arbitration in Switzerland – High Court judgment in parallel litigation incorporated in the arbitral award – No violation of right to be heard or public policy (Res judicata) – No postponement of hearing (virtual) in Covid-19 pandemic]

4A_628/2018 vom 19. Juni 2019 [Arbitral tribunal entitled to rely on findings made in a previous arbitration]

4A_536/2018 du 16 mars 2020 [Limited res judicata effect of award dismissing request for declaratory relief – Boilerplate language in award]

4A_438/2018 vom 17. Januar 2019 [Arbitral tribunal not required to hear a witness where the party calling him does not explain what further information beyond the written witness statement could be obtained during the hearing]

4A_125/2018 vom 26. Juli 2018 [Success fee compatible with public policy – No duty to hear immaterial or late witness]

4A_560/2018 du 16 novembre 2018 [FIFA not allowed to challenge CAS award unless showing interest worthy of protection]

4A_284/2018 vom 17. Oktober 2018 [Ultra petita – Operative part need not mirror the parties’ prayers verbatim]

4A_497/2015 del 24 novembre 2016 [Joint venture dispute – Arbitrators refuse to order general assembly of the non-signatory joint venture company – Refusal to hear immaterial witness]

4A_562/2015 del 9 dicembre 2015 [Standing to sue and be sued is a matter of substance not of jurisdiction – Original of the arbitration clause not required]

4A_151/2018 del 1° febbraio 2019 [Pre-contractual liability – Cost award – Defendant ordered to bear 2/3 of the costs despite defeating 97.5% of the claim]

5A_213/2020 vom 31. August 2020 [Excessive cost decision in a domestic award set aside – Arbitrators liable for costs of the Supreme Court proceedings]

4A_462/2021 vom 7. Februar 2022 [Award upheld despite conflict of the presiding arbitrator’s new law firm – Deliberations had ended by that time]

4A_404/2021 du 24 janvier 2022 [Unsuccessful challenge of arbitrator whose partner was honorary counsel of a State interested in the outcome of the arbitration – Rectification of a wrong designation of claimant (mere typo)]

4A_520/2021 du 4 mars 2022 [Arbitrator challenge – Multiple appointments – Work performed by the arbitrator’s firm – Reliance on illegally procured evidence]

4A_12/2019 du 17 avril 2020 [Jurisdiction over claims relating to losses of third party (sub-licensee)]

4A_217/2022 du 6 juillet 2022 [Arbitral tribunal annuls its award on its own motion]

4A_27/2022 vom 10. Mai 2022 [Group of contracts – Arbitration clause superseded by forum selection clause in a subsequent contract]

Matthias Scherer & Catherine A. Kunz

Editors

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Matthias Scherer (Editor in Chief), Catherine Anne Kunz (Editor)

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