The Bulletin in Brief

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Vol. 40 (2022), Issue 4

In his message Global Arbitration, Swiss Style?, ASA President Felix DASSER reflects on the distinctive hallmarks of Swiss arbitration.

For years parties to international arbitrations have used the powerful discovery mechanism of Section 1782 of Title 28 of the United States Code to seek the U.S. courts’ assistance in obtaining evidence from persons in the United States. On 13 June 2022, the United States Supreme Court issued a long-awaited decision in which it clarified that the scope of Section 1782 did not encompass private international arbitration, while leaving the door open for arbitral tribunals imbued with some level of governmental authority. David N. LUDER and Louis CHRISTE report on this important decision and address the implications of this new precedent and its impact on participants to arbitration proceedings seated outside the U.S. with a focus on arbitrations seated in Switzerland. (David N. LUDER, Louis CHRISTE, U.S. Courts’ Assistance to International Arbitrations. Recent Developments and Impact on Arbitrations Seated in Switzerland.)

Over the last decade, commercial arbitration has undeniably progressed towards more diversity on arbitral tribunals, which is largely the fruit of the efforts of arbitration institutions and practitioners who are themselves products of the arbitration ecosystem. In their thought-provoking contribution, Guillaume FELD and Myriam EL KARA urge us to re-assess diversity and call for more « professional diversity », i.e., to include on arbitral tribunal nonlawyers who are familiar with the industry and business sectors of the parties to reconcile the promotion of gender, ethnic and age diversity with the interests of arbitration users. (Guillaume FELD, Myriam EL KARA, Parité n’est pas diversité ! Loin de la favoriser, la parité fait en réalité obstacle à la diversité
en matière d’arbitrage commercial.)

Procedural misconduct comes in many forms and guises: from frivolous claims, to baseless requests, obstructive conduct or the blanket refusal to abide by a document production order. Robin MOSER examines the consequences of procedural misconduct on cost allocation and how arbitrators should, when appropriate, sanction the party guilty of procedural misconduct or indemnify the other side by rendering an adverse cost award. (Robin MOSER, Effects of Procedural Misconduct on the Allocation of Costs in International Arbitration.)

Thomas GRANIER analyses the decision handed down earlier this year by the Paris Court of Appeal in the “Bestful” case (22 February 2022, No. 20/05869). In that decision, the Paris Court of Appeal held that a party is precluded from invoking, in setting aside proceedings, for the first time, an arbitrator’s alleged lack of impartiality based on articles published in a journal co-edited by that arbitrator, when those publications where notorious already at the time of his appointment. (Thomas GRANIER, A Party’s Failure to Timely Rely on Notorious Publications Edited by an Arbitrator Precludes the Setting Aside of an Award for Lack of Impartiality. Note on Paris Court of Appeal Decision of 22 February 2022.)

Samantha NATAF focuses on another important decision rendered by the French courts: in its decision of 9 February 2022, the French Cour de Cassation relied on “the principle of procedural loyalty governing parties to an arbitration agreement” to hold that a party that had caused the withdrawal of the arbitration proceedings by failing to pay its share of the advance on costs, was not entitled to rely on the arbitration agreement to object to the jurisdiction of the French courts. Although the solution is not new, it had divided the doctrine in France until then. (Samantha NATAF, Payment of the Advance on Costs, Procedural Loyalty and Access to Justice. Note on French Cour de Cassation Decision of 9 February 2022.)

Foreign Case Law – France
Cour d’appel de Paris, Pôle 5, Chambre 16, Arrêt 20/05869 du 22 février 2022 [No arbitrator challenge based on articles authored by third parties and published in a journal co-edited by the arbitrator]
Cour de cassation, civile, Chambre civile 1, Arrêt n° 143 FS-B, N° de pourvoi 21-11.253, du 9 février 2022 [Estoppel – A party whose failure to pay cost advance causes withdrawal of arbitration has no right to rely on arbitration agreement to halt subsequent court proceedings]

Swiss Federal Supreme Court Decisions
4A_64/2022, Arrêt du 18 juillet 2022 [Non-signatory not bound by arbitration agreement despite alleged tortious interference]
4A_564/2021, Urteil vom 2. Mai 2022 [Whistleblower has no standing
in CAS arbitration]
4A_600/2021, Urteil vom 28. Februar 2022 [Procedural misconduct –
Autonomy of the arbitration agreement]
4A_608/2021, Arrêt du 8 mars 2022 [Failure to pay Supreme Court fee]
4A_90/2021 und 4A_112/2021, Urteile vom 9. September 2021 [Bad faith reliance on requirement of mandatory pre-arbitral settlement negotiations – Late challenge of default arbitrator appointment by juge d’appui]
4A_542/2021, Arrêt du 28 février 2022 [Standard for review of sport federations disciplinary decisions – Contradictory behaviour]
4A_72/2022, Urteil vom 6. April 2022 [Two different annulment requests by the same party]
4A_453/2021, Arrêt du 2 décembre 2021 [Alleged violations of the ECHR or the Swiss Constitution are not grounds for challenge under article 190 PIL Act – Direct claim against a service provider (surveillance company) in an oil trading contract excluded]

Matthias Scherer & Catherine A. Kunz


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