The Bulletin in Brief

Bulletin in Brief from the ASA Bulletin Vol. 41 (2023) Issue 2

Vol. 41 (2023), Issue 2

In his message Judging, Fast and Slow, ASA President Felix DASSER, drawing an analogy with the work of psychologist and Nobel Prize winner Daniel Kahneman, reflects on the how jurisdictions deal with challenges to arbitral awards and the differences between fast and slow judgments.

President of the Arbitration Court of the Swiss Arbitration Centre, Xavier FAVRE-BULLE presents the Swiss Rules of International Arbitration Practice Note, which describes how the Swiss Rules must be understood and are applied in practice. (Xavier FAVRE-BULLE, Swiss Rules of International Arbitration: Practice Note – Introduction.)

This note is followed by excerpts of the Practice Note on selected issues (cross-claims, joinder, intervention; constitution of the arbitral tribunal, impartiality and independence of arbitrators, organisation and conduct of the proceedings, including data protection, cybersecurity, early determination and summary dismissal; interim measures; the award and termination of the proceedings; the expedited procedure; emergency relief). (Swiss Rules of International Arbitration: Practice Note – Excerpts.)

With the entry into force in 2021 of Article 190a of the Swiss Private International Law Act (PILA) and the simultaneous amendment of Article 191 PILA, which now refers to a new Article 119a of the Federal Supreme Court Act, the extraordinary remedy of “revision” of decisions rendered in international arbitrations seated in Switzerland has been put on a statutory footing. There are many procedural aspects to revision proceedings that are not specifically stipulated in the law but derive from the practice of the Supreme Court. Others are governed by provisions of the Federal Supreme Court Act, even if it is not always clear at first glance that they apply to revision proceedings against arbitral awards. Christopher BOOG and Letícia MORAIS summarize the various procedural aspects that need to be considered when handling revision proceedings before the Swiss Supreme Court.
(Christopher BOOG, Letícia MORAIS, Revision of Arbitral Awards before the Swiss Federal Supreme Court: Procedural Aspects .)

Statutory arbitration clauses for the settlement of corporate law disputes are now expressly allowed under the newly introduced Swiss corporate law. Such clauses must comply with specific procedural requirements in favor of persons who may be directly affected by the legal effects of the arbitral award. In order to comply with those requirements and to ensure that corporate law disputes can be settled efficiently and effectively, the Swiss Arbitration Centre has issued the Supplemental Swiss Rules for Corporate Law Disputes, in force as from 1 January 2023. Frank SPOORENBERG and Boris CATZEFLIS
comment on the legal basis for statutory arbitration clauses and such supplemental rules, in particular how they address the legal requirements for the validity of the statutory arbitration clauses and for proceedings based on such clauses. They also discuss the impact of the bankruptcy of a Swiss joint stock company on the statutory arbitration clause provided for in its articles of association in case of a liability claim brought by creditors against members of the corporate bodies. (Frank SPOORENBERG, Boris CATZEFLIS, The 2023 Supplemental Swiss Rules for Corporate Law Disputes.)

Arbitrator disclosure is one of the thorniest areas of arbitral practice. Some of the difficulties facing arbitration users in commercial arbitration can be traced back to the role of the arbitrator who is chosen and paid to be neutral. Daniel GREINEDER addresses a number of difficulties in current practice showing that the considerable focus on disclosure obligations neglects the need to evaluate it carefully. He submits that the recent decision of the British Supreme Court in Halliburton v Chubb illustrates the limitation of disclosure requirements if the disclosure is not appropriately assessed. Finally, he considers close personal relationship as an underexplored category of disclosure. (Daniel GREINEDER, Through a Glass Darkly: Making Sense of Arbitrator Disclosure.)

Swiss Federal Supreme Court Decisions
4A_422/2021, Arrêt du 14 octobre 2021 [Revision request – Alleged new evidence of counsel conflict]
4A_184/2022, Urteil vom 8. März 2023 [Revision request – Treaty award (India-Deutsche Telekom) – Reliance on new Indian Supreme Court judgment unavailing (no new evidence)]
4A_606/2021, Arrêt du 28 avril 2022 [Revision request – Post award expert report is not a valid ground for revision]
4A_69/2022, Arrêt du 23 septembre 2022 [Revision request – Treaty award (Croatia v MOL) – Reliance on new Croatian Supreme Court judgment unavailing (no new evidence ) – Waiver of the right to challenge award (192 PIL Act)]
4A_100/2022, Urteil vom 24. August 2022 [Revision request – Barrister conflict]
4A_544/2021, Arrêt du 6 janvier 2022 [Splitting costs not arbitrary even though only 7% of claim were awarded]
4A_538/2021, Arrêt du 30 mars 2022 [Claimant’s failure to advance Court fee or security for respondent’s fees entails dismissal of annulment request]
4A_512/2021, Ordonnance du 14 décembre 2021 [Arbitral tribunal annuls its own award in reaction to an annulment request filed with the Supreme Court]
4A_504/2021, Arrêt du 18 janvier 2022 [Right to be heard – Prohibition to take parties by surprise]
4A_461/2021, Urteil vom 27. Oktober 2021 [No subject-matter jurisdiction – Conflicting arbitration and forum selection clauses – Language of the proceedings]
4A_460/2021, Urteil vom 3. Januar 2022 [Insurance contract – Conflicting forum selection and arbitration clauses – No form requirements]
4A_382/2021, Urteil vom 24. September 2021 [Waiver of right to challenge award (Art. 192 PIL Act)]
4A_380/2021, Arrêt du 22 mars 2022 [Allegation of lack of proper notice dismissed]
4A_374/2021, Arrêt du 23 novembre 2021 [Ultra petita – Right to be heard – Iura novit curia – Arbitral tribunal can grant less than what was claimed and rely on legal points different from those invoked by the parties]
4A_277/2021, Arrêt du 21 décembre 2021 [Simultaneous post-hearing briefs –
No unconditional reply right – Cost award including estimate of future/post-award costs]

Matthias Scherer & Catherine A. Kunz


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