The Bulletin in Brief


Bulletin in Brief from the ASA Bulletin Vol. 41 (2023) Issue 4

In his message, 50 Years of ASA, ASA President Felix DASSER invites us to celebrate fifty years of ASA during the first Swiss Arbitration Summit and reflects on the issues that are likely to keep ASA busy in the future.

Articles
What makes a good Procedural Order No. 1 (PO1)? How detailed should it be? What and how much should it cover? Although PO1s are a common feature of arbitration, there are diverging views on how to draft a good PO1. Arbitrators are facing increasing criticism for relying too much on model PO1 templates instead of using this as an opportunity for focusing on continuous case management that takes maximum advantage of the flexibility inherent in international arbitration. Mika SAVOLA summarizes the recent debate about the role of PO1 in case management and discusses some of the most fundamental issues that arbitral tribunals and parties should consider when preparing PO1s. The author posits that despite contrary arguments by some leading practitioners, a skilfully crafted and sufficiently comprehensive PO1 remains the cornerstone of any well-run arbitration. (Mika SAVOLA, Procedural Order No. 1 – Trends and Practices.)

Marco STACHER comments a recent decision (4A_16/2023 of 8 November 2023), in which the Swiss Supreme Court tackled a controversial question: whether a claimant who has seized a wrong court gets a second chance to introduce its claim before the right (competent) court – or rather, in this case, arbitral tribunal? Art. 63(1) and 64(2) of the Swiss Civil Procedure Code (“CPC”) indeed provide for a grace period to seize the proper court. But what happens if, in the meantime, the claim became time barred? In this case, the Court found that the arbitrator had wrongly disregarded Art. 63(1) and 64(2) CPC which form part of Swiss substantive law. The Court nevertheless dismissed the challenge because (domestic) arbitral awards can only be annulled in case of a qualified error (manifest disregard). (Marco STACHER, Action Filed in the Wrong Tribunal – Grace Period to Bring a New Action in the Right (Competent) Tribunal?)

Since its entry into force, the English Arbitration Act 1996 was subject to a thorough review in 2006, but not to a comprehensive reform. The Law Commission has now prepared such a reform, following extensive public consultation. This reform project is a priority for the United Kingdom government, which is why it will likely be implemented prior to the next general elections that must be held in January 2025 at the latest. Johannes LANDBRECHT reports on the (limited) changes to the English Arbitration Act 1996 proposed by the Law Commission. (Johannes LANDBRECHT, Revision des English Arbitration Act 1996 Ein Zwischenbericht.)

At the first ASA Town Hall that took place on 29 September 2023 in Bern, the ASA Community dealt with the topic of conflicts of interest and disclosure through six roundtables focusing on arbitrators’ disclosure duties, issue conflicts, third party-funding, social media and regulation. The outcomes of the roundtable discussions were gathered in a plenary session and tested with a number of polling questions. The polling results give an indication of the prevailing opinions of the ASA Community on selected questions relating to conflicts of interest and disclosure. ASA Town Hall organisers, Christian OETIKER and Nadja JAISLI KULL summarize the views expressed by the ASA Community at the ASA Town Hall and polling results in a short report. (Christian OETIKER, Nadja JAISLI KULL, Prabhjot K. SINGH, Conflicts of Interest and Disclosure – Views of the ASA Community.)

Jonathan SILBERSTEIN-LOEB submits that arbitrators may, in a way that is consistent with existing ethical rules and guidelines, use generative AI to aid their decision making, but not to make decisions. He warns that there are, however, a number of important precautions arbitrators should take before making use of such tools, even as mere aids, calling for the need for arbitral institutions to provide further guidance for arbitrators, particularly regarding party consent and the enforcement of ethical AI use. (Jonathan SILBERSTEIN-LOEB, Arbitrators, Decision Making, and Generative AI.)

Swiss Federal Supreme Court Decisions

4A_180/2023, Urteil vom 24. Juli 2023 [Request to set aside CAS award – Arbitrability – Employment law]
4A_575/2022, Urteil vom 7. August 2023 [Alleged lack of powers of state representatives to enter into arbitration agreement – State succession]
5A_115/2023, Arrêt du 7 juillet 2023 [Amounts awarded net of tax – Withholding tax paid by award debtor in lieu of the award creditor]
4A_603/2021, Sentenza del 31 gennaio 2023 [Works contract – Expert determination – Tacit waiver of objections to belated defect notice]
4A_464/2023, Urteil vom 20. Oktober 2023 [Late appeal to CAS – No restitution of time limit – Counsel’s illness had to be anticipated]
4A_668/2020, Arrêt du 17 mai 2021 [Principle that proceedings be conducted diligently – Procedural public policy]