I INTRODUCTION

i General

For decades, Switzerland has been a preferred location for conducting international arbitrations. This tradition, also attributable to its neutrality, has not been impaired by the ending of the East–West division. Today, the decisive factor is the very arbitration-friendly legal environment, in particular the attitude of the state courts to arbitration, as shown by the fast set-aside proceedings before the Swiss Federal Supreme Court.

ii Different laws for international and domestic arbitration

Swiss law distinguishes between international and domestic arbitration. International arbitrations are subject to the 12th Chapter on International Arbitration of the Swiss Federal Private International Law Act (PILA), which entered into force on 1 January 1989.2 On 1 January 2011, the new Swiss Federal Code on Civil Procedure (CCP) entered into force. Part 3 of this, on arbitration (Articles 353 to 399), governs all domestic arbitrations and replaces the cantonal Concordat on Arbitration. Most significantly, Part 3 abolished the list of mandatory provisions contained in the Concordat, and now provides a modern arbitration law with an emphasis on flexibility and party autonomy.3

Under Article 353(2) of the CCP, parties may opt out and subject their arbitration to Chapter 12 of the PILA. This is to be recommended in multiparty situations where parties are domiciled both in Switzerland and abroad. There is also the possibility to opt out of Chapter 12 of the PILA and to subject the arbitration to the rules of the CCP.

iii International arbitration in Switzerland

Although Chapter 12 is formally part of the PILA, it stands alone and is autonomous; the provisions in the other chapters of the PILA do not apply to international arbitration. While Chapter 12 is not based on the UNCITRAL Model Law, in substance it does not vary significantly from it. Chapter 12 consists of a mere 19 articles. Its most salient features are as follows.

The provisions of Chapter 12 of the PILA apply to all arbitrations if the seat of the arbitral tribunal is in Switzerland and if, at the time of the conclusion of the arbitration agreement, at least one of the parties had neither its domicile nor its habitual residence in Switzerland.4 The parties may, however, agree in the arbitration agreement or in a later agreement that the provisions of Chapter 12 are excluded and that Part 3 of the CCP should apply.5 The seat of the arbitral tribunal shall be determined by the parties or the arbitral institution designated by them, or, failing both, by the arbitrators.6

Pursuant to Article 177(1) of the PILA, any dispute of financial interest may be the subject of an arbitration in Switzerland. This objective arbitrability is to be determined without regard to the substantive law governing the substance of the dispute, or the parties' national law. This provision is therefore not a conflict-of-laws rule but a substantive rule of international private law. Primarily excluded are matters concerning the determination of legal status, such as in family law, insolvency law and intellectual property. Furthermore, certain actions in debt enforcement and bankruptcy proceedings are not arbitrable. Under Article 177(2) of the PILA, a state or an enterprise held by or an organisation controlled by a state that is party to an arbitration agreement cannot invoke its own law to contest its capacity to arbitrate or the arbitrability of a dispute covered by the arbitration agreement.

Article 178(1) of the PILA provides that the arbitration agreement must be made in writing, or by telegram, telex, telecopier or any other means of communication that permits it to be evidenced by text. This independent substantive rule of international private law avoids any reference to domestic or foreign provisions on writing requirements. The arbitration agreement does not have to be signed; nor are there any requirements for an exchange of documents. Pursuant to Article 178(2) of the PILA, an arbitration agreement is valid if it conforms either to the law chosen by the parties or to the law governing the subject matter of the dispute, in particular the main contract, or to Swiss law. Finally, Article 178(3) of the PILA expressly stresses the autonomy of the arbitration clause in line with the separability principle.

With regard to the constitution of the arbitral tribunal, party autonomy is guaranteed, while in the absence of any agreement the judge at the seat of the arbitral tribunal may be seized.7 An arbitrator may be challenged if he or she does not meet the qualifications agreed upon by the parties; if a ground for challenge exists under the rules of arbitration agreed upon by the parties; or if circumstances exist that give rise to justifiable doubts as to his or her independence. The ground for challenge must be notified to the arbitral tribunal and to the other party without delay.8

Article 182 of the PILA on procedure gives the parties full autonomy to determine the arbitral procedure, directly or by reference to rules of arbitration, or also by submitting the arbitral procedure to a procedural law of their choice. In the absence of any determination by the parties, the arbitral tribunal shall determine the procedure to the extent necessary, either directly or by reference to a statute or to rules of arbitration. The only limit is the mandatory rule that, regardless of the procedure chosen, the arbitral tribunal shall ensure equal treatment of the parties and the right of both parties to be heard in adversarial proceedings.9

The arbitral tribunal may, on the motion of one party, order provisional or conservatory measures; this is, however, not an exclusive jurisdiction of the arbitral tribunal. Furthermore, if the party concerned does not voluntarily comply with these measures, the arbitral tribunal may request the assistance of the state judge, who will apply his or her law.10

The arbitral tribunal shall itself conduct the taking of evidence. The arbitral tribunal (or a party with the consent of the arbitral tribunal) may request the assistance of the state judge at the seat of the arbitral tribunal, who will apply his or her law.11 In practice, when arbitral tribunals take guidance from the IBA Rules on the Taking of Evidence in International Arbitration, they will usually do so with some restrictions and adaptations.12

The Kompetenz-Kompetenz of the arbitral tribunal is embodied in Article 186(1) of the PILA on jurisdiction. The Swiss legislator responded to the Fomento decision of the Swiss Federal Supreme Court13 by adding a paragraph to Article 186 of PILA, with effect as of 1 March 2007, according to which the arbitral tribunal shall decide on its jurisdiction notwithstanding an action on the same matter between the same parties already pending before a state court or another arbitral tribunal, unless there are serious reasons to stay the proceedings.14 The lack of jurisdiction must be raised before any defence on the merits, and the arbitral tribunal shall, as a rule, decide on its jurisdiction by preliminary award.15

As for the determination of the law applicable to the merits of the case, Article 187(1) of the PILA provides that the arbitral tribunal shall decide the case according to the rules of law chosen by the parties or, in the absence thereof, according to the rules of law with which the case has the closest connection. This is an independent conflict-of-law rule creating a specific private international law system for international arbitration in Switzerland. The conflict-of-law rules that are contained in other chapters of the PILA do not apply.

Subject to a different agreement by the parties, the arbitral award shall be made by a majority or, in the absence of a majority, by the chair alone. The signature of the chair is sufficient. The arbitral tribunal may render partial awards.16

Article 190(2) of the PILA lists the exclusive and very limited grounds for an action for annulment of an award:

  1. if the sole arbitrator was not properly appointed or if the arbitral tribunal was not properly constituted;
  2. if the arbitral tribunal wrongly accepted or declined jurisdiction;
  3. if the arbitral tribunal's decision went beyond the claims submitted to it, or failed to decide one of the items of the claims;
  4. if the principle of equal treatment of the parties or the right of the parties to be heard was violated; and
  5. if the award is incompatible with public policy.

As for item (e), the Swiss Federal Supreme Court has consistently held that this relates not to domestic public policy but to international public policy; furthermore, the concrete result of the award must be contrary to public policy. Wrong or arbitrary findings of fact or a clear violation of rules of law will not suffice. Preliminary and interim awards can only be annulled on grounds (a) and (b); the time limit runs from the notification of the preliminary award (Article 190(3) of the PILA). An action for annulment has to be filed within 30 days of the notification of the arbitral award with the Swiss Federal Supreme Court, which is the only judicial authority and instance to decide set-aside actions, and which renders its decisions on average within six months.17 An action for annulment does not have any suspensive effect unless a specific application to this end has been granted by the Supreme Court.

If none of the parties have their domicile, habitual residence or a business establishment in Switzerland, they may, by an express statement in the arbitration agreement or by subsequent written agreement, fully waive an action for annulment, or they may limit it to one or several of the aforementioned annulment grounds.18 The Swiss Federal Supreme Court has constantly held that such a waiver has to be agreed upon clearly and unequivocally. The term appeal such as in some standard arbitration clauses ('without any appeal') is insufficient to constitute a valid waiver.19

Chapter 12 of the PILA does not contain any provisions on the revision of arbitral awards. However, the Swiss Federal Supreme Court decided already in 1992 that by analogy to the statutory grounds for revision of the Supreme Court's own decisions, awards by international arbitral tribunals are susceptible to an application for revision either if the award was obtained or influenced by a criminal offence or when a fact of evidence has been discovered after the award was rendered that existed at the time of the award and would have likely influenced the outcome of the proceedings.20

The recognition and enforcement of foreign arbitral awards is governed in Switzerland by the New York Convention of 1958, which entered into force in Switzerland on 30 August 1965.21 The reservation of reciprocity originally made was later withdrawn.

Switzerland is also a party to the Geneva Protocol of 1923 and to the Geneva Convention of 1927, whose practical importance are, however, today rather limited.

iv Institutional arbitration in Switzerland: Swiss Chambers' Arbitration Institution

The revised Swiss Rules of International Arbitration (Swiss Rules) entered into force on 1 June 2012.22 They brought some changes and additions to the very successful 2004 Swiss Rules to further enhance the efficiency of arbitral proceedings, although no general overhaul was necessary.

The 2004 Swiss Rules harmonised and replaced the former rules for international arbitration of the seven chambers of commerce and industry of Basle, Berne, Geneva, Neuchâtel, Ticino, Vaud and Zurich. The chambers have now changed the name of their arbitration institution to the Swiss Chambers' Arbitration Institution. The administering body (formerly the Arbitration Committee) is now named the Arbitration Court (Court). The Court is composed of experienced international arbitration practitioners. In addition to the tasks and decisions delegated to the Court as specified in the various provisions of the Swiss Rules, it is now also expressly provided that the parties confer on the Court – to the fullest extent permitted under the law applicable to an arbitration – all of the powers required for the purpose of supervising the arbitral proceedings otherwise vested in the competent judicial authority.23 The Court is assisted by the Secretariat.

The 2012 Swiss Rules still provide for a light administration. There is no scrutiny of the award itself. However, before rendering an award, a termination order, an additional award or an interpretation or correction of the award, the arbitral tribunal shall submit to the Secretariat a draft thereof for approval or adjustment by the Court of the determination on costs. Such approval or adjustment is binding upon the arbitral tribunal.24

The award is communicated to the parties by the arbitral tribunal.

The Swiss Rules shall govern arbitrations where an agreement to arbitrate refers to them or to the arbitration rules of the different chambers of commerce that have adhered to them.25 Unless the parties have agreed otherwise, the Swiss Rules shall apply to all arbitral proceedings in which the notice of arbitration is submitted on or after 1 June 2012;26 references in contracts to the former arbitration rules of the chambers will thus lead to an application of the Swiss Rules unless the parties have agreed otherwise. The parties are free to designate the seat of the arbitration in Switzerland or in any other country.27

The 2004 Swiss Rules were originally based on the UNCITRAL Arbitration Rules 1976. Changes and additions were made to adapt the UNCITRAL Arbitration Rules to institutional arbitration, and to reflect modern practice and comparative law in the field of international arbitration. However, the new 2012 Swiss Rules do not reflect the amendments made by the 2010 revision of the UNCITRAL Arbitration Rules, as the practice under the Swiss Rules has, since 2004, developed independently from the UNCITRAL Arbitration Rules.

The following are specificities of the Swiss Rules.

Article 8(3) to (5) of the Swiss Rules provides for the constitution of the arbitral tribunal in multiparty proceedings. If the parties have not agreed upon a procedure, the claimant or group of claimants shall designate an arbitrator, and subsequently the respondent or group of respondents shall designate an arbitrator. Unless the parties' agreement provides otherwise, the two arbitrators so appointed shall designate the presiding arbitrator. Failing such designation, the court shall appoint the presiding arbitrator. If a party or group of parties fails to designate an arbitrator, the court may appoint all three arbitrators and shall specify the presiding arbitrator.

In line with Article 187(1) of the PILA, the arbitral tribunal shall decide the case in accordance with the rules of law agreed upon by the parties or, in the absence of a choice of law, by applying the rules of law with which the dispute has the closest connection.28

Article 4 of the Swiss Rules provides the possibilities of consolidation and joinder for multiparty arbitration and multi-contract arbitration situations. Pursuant to Article 4(1) of the Swiss Rules, where a notice of arbitration is submitted between parties already involved in other arbitral proceedings under the Swiss Rules, the Court may decide, after consulting with the parties and any confirmed arbitrator in all proceedings, that the new case shall be consolidated with the pending arbitral proceedings. The Court may proceed in the same way where a notice of arbitration is submitted between parties that are not identical to the parties in the pending arbitral proceedings. When rendering its decision, the Court shall take into account all relevant circumstances, including the links between the cases and the progress already made in the pending arbitral proceedings. Where the Court decides to consolidate the new case with the pending arbitral proceedings, the parties to all proceedings shall be deemed to have waived their right to designate an arbitrator, and the Court may revoke the appointment and confirmation of arbitrators, and apply the provisions on the composition of the arbitral tribunal.

The joinder of third parties is dealt with in Article 4(2) of the Swiss Rules: where one or more third persons request to participate in arbitral proceedings already pending under the Swiss Rules, or where a party to pending arbitral proceedings under the Swiss Rules requests that one or more third persons participate in the arbitration, the arbitral tribunal shall decide on such request after consulting with all the parties, including the person or persons to be joined, taking into account all relevant circumstances.

More generally, the Swiss Federal Supreme Court upholds the extension of an arbitration agreement to a non-signatory if such party participated in the performance of the contract and thereby showed its intent to be bound by the arbitration agreement in the contract. However, the existence of a group of companies alone does not suffice.

According to Article 21(5) of the Swiss Rules, the arbitral tribunal shall have jurisdiction to hear a set-off defence even if the relationship out of which the defence is said to arise is not within the scope of the arbitration clause, or falls within the scope of another arbitration agreement or forum-selection clause.

The new Article 15(7) of the Swiss Rules provides that all participants in arbitral proceedings shall act in good faith, and make every effort to contribute to the efficient conduct of the proceedings and to avoid unnecessary costs and delays.

The provision regarding settlements is also novel.29 With the agreement of each of the parties, the arbitral tribunal may take steps to facilitate the settlement of the dispute before it. Any such agreement by a party shall constitute a waiver of its right to challenge an arbitrator's impartiality based on the arbitrator's participation and knowledge acquired in taking the agreed steps.

As regards interim measures of protection,30 it is now expressly provided that, upon the application of any party or, in exceptional circumstances and with prior notice to the parties, on its own initiative the arbitral tribunal may also modify, suspend or terminate any interim measures granted. Furthermore, in exceptional circumstances, the arbitral tribunal may rule on a request for interim measures by way of a preliminary order before the request has been communicated to any other party, provided that such communication is made at the latest together with the preliminary order and that the other parties are immediately granted an opportunity to be heard. Therefore, in exceptional circumstances, an arbitral tribunal may order ex parte interim measures. However, by submitting their dispute to arbitration under the Swiss Rules, the parties do not waive any right that they may have under the applicable laws to submit a request for interim measures to a judicial authority.

Article 42 of the Swiss Rules provides for an expedited procedure in all cases where the amount in dispute does not exceed 1 million Swiss francs. The parties may also agree, even after the dispute has arisen, to submit their dispute to an expedited procedure. The time limits are shortened: there shall be in principle only one statement of claim, one statement of defence and a single evidentiary hearing. The award shall be made within six months and the arbitral tribunal (a sole arbitrator for amounts in dispute that do not exceed 1 million Swiss francs) shall state the reasons in summary form, unless the parties have agreed that no reasons are to be given.

The 2012 Swiss Rules newly provide for emergency relief proceedings.31 Before an arbitral tribunal is constituted, a party may submit to the Secretariat an application for emergency relief proceedings requesting interim measures. The application is submitted to a sole emergency arbitrator who shall render his or her decision within 15 days. The decision of the emergency arbitrator shall have the same effect as a decision of an arbitral tribunal on interim measures of protection pursuant to Article 26 of the Swiss Rules. Any interim measure granted by the emergency arbitrator may be modified, suspended or terminated by the emergency arbitrator or, after transmission of the file to it, by the arbitral tribunal. The emergency arbitrator may not serve as arbitrator in any arbitration relating to the dispute in respect of which the emergency arbitrator has acted, unless otherwise agreed by the parties.

The parties may derogate from the provisions in Articles 4, 21(5), 26, 42 and 43, as they may from almost all other provisions of the Swiss Rules, as long as fundamental principles are not undermined, such as the duty of the arbitrators to remain impartial and independent of the parties at all times,32 the equal treatment of the parties and the right to be heard,33 and certain provisions concerning the organisation of the arbitral proceedings by the Court.

In its Guidelines for Arbitrators, effective 1 August 2014, the Court summed up its practice on administrative secretaries, deposits as an advance for costs, guidelines for accounting of expenses, fees of the arbitral tribunal, as well as advance payments and payments to replaced or former arbitrators.

v The Court of Arbitration for Sport

The Court of Arbitration for Sport (CAS) was created in 1984 under the administrative and financial authority of the International Council of Arbitration for Sport (ICAS). It provides services for the settlement of sports-related disputes by offering arbitration and mediation rules adapted to the specific needs of the sports world. It is independent of any sports organisation.34

The seat and head office of the CAS are in Lausanne. There are two decentralised offices in Sydney and New York. Unlike the Swiss Chambers' Arbitration Institute, the CAS has a list of about 392 arbitrators from 85 countries with specialist knowledge of arbitration and sports law. Of these arbitrators, 88 are also on a separate football list.

The CAS administers disputes directly or indirectly linked to sport. Disputes arising from contractual relations or torts are administered in ordinary arbitration procedures; disputes resulting from decisions taken by the internal bodies of sports organisations (e.g., of a disciplinary nature) are dealt with in appeals arbitration procedures. Accordingly, the CAS comprises an Ordinary Arbitration Division, an Appeals Arbitration Division and an Anti-Doping Division. Furthermore, the CAS establishes an ad hoc division with special procedural rules for specific occasions, such as for the Olympic Games, the Commonwealth Games and other major events.

Any individual or legal entity with capacity to act may have recourse to the services of the CAS. This includes athletes, clubs, sports federations, organisers of sports events, sponsors and television companies.

An award pronounced by the CAS is subject only to annulment proceedings before the Swiss Federal Supreme Court and can be enforced under the New York Convention.

The Code of Sports-related Arbitration, now in its version in force as from 1 January 2019, comprises the Statutes of the Bodies Working for the Settlement of Sports-Related Disputes (Provisions S1 to S26) and Procedural Rules (Provisions R27 to R70). Separate Arbitration Rules of 2003 are applicable to the CAS ad hoc division for the Olympic Games, and form an integral part of the Code of Sports-related Arbitration. There are also Arbitration Rules applicable to the CAS Anti-Doping Division of 2018 and the Legal Aid Guidelines of 2013. The consultation procedure that allowed sports organisations to request an advisory opinion from the CAS, rarely used in the past, was abrogated in 2012.

It is CAS policy to update its Code of Sports-related Arbitration regularly to address the demands of modern arbitration procedures. Major amendments to the Code of Sports-related Arbitration entered into force on 1 January 2012. In establishing a list of CAS arbitrators, the ICAS can call upon personalities with full legal training, recognised competence with regard to sports law or international arbitration, a good knowledge of sport in general and a good command of at least one CAS working language, and whose names and qualifications are brought to the attention of the ICAS, including by the International Olympic Committee, the International Federations (IFs) for the Summer and Winter Olympics and the NOCs. A new subsection of Article 39 of the Procedural Rules now allows, after consulting with the parties, the consolidation of two arbitration procedures. Further, appeals against decisions issued by national federations are no longer free of charge for the parties: only appeals against decisions of a disciplinary nature issued by IFs will remain free of charge for parties.

The International Council of Arbitration for Sports also adopted the CAS Mediation Rules in 2013, which were amended in 2016. CAS has a list of 61 mediators.

As of 1 March 2013, further amendments of the CAS Rules came into force. In line with other arbitration institutions, the word impartiality has been added in all provisions where the independence of the CAS and its members are concerned. It will now be possible for a party to ask for interim measures from the CAS immediately after the notification of a final decision by a sports federation even before the filing of a formal appeal at the CAS. To issue the operative part of an award before rendering the reasons is now also possible in the ordinary arbitration procedure; this has so far only been possible in the appeal arbitration procedure. Further, CAS panels may exclude evidence that could have already been produced before the first instance tribunal.

In 2016, 2017 and 2019, various procedural provisions have been amended. A copy of the operative part of an award, if any, and of the full award, shall be communicated to the authority or sports body that has rendered the challenged decision, if that body is not a party to the proceedings. As regards the publication of proceedings, the CAS Court Office may publicly announce the initiation of any appeals arbitration procedure and, at a later stage and where applicable, the composition of an arbitral panel and a hearing date, unless the parties agree otherwise.

vi The WIPO Arbitration and Mediation Center

The WIPO Arbitration and Mediation Center in Geneva was established in 1994 for the resolution of international commercial disputes between private parties. It is an independent and impartial body forming part of the World Intellectual Property Organization. Its arbitration, expedited arbitration, mediation and expert determination rules are drafted specifically for disputes in technology, entertainment and other intellectual property matters.35 The cases filed include not only contractual disputes, such as patent and software licences, trademark coexistence agreements, and research and development agreements, but also non-contractual disputes such as patent infringements. With its database of over 1,500 neutrals, the WIPO Center assists parties in the selection of mediators, arbitrators and experts. Since 2010, the Center has an office in Singapore.

The WIPO Center provides procedural guidance to parties to facilitate their direct settlement or the submission of their dispute to WIPO ADR ('good offices' requests).

Considering, inter alia, the 2010 revision of the UNCITRAL Arbitration Rules, the Center decided to slightly revise the four sets of rules. The 2014 WIPO Arbitration, Expedited Arbitration, Mediation and Expert Determination Rules entered into effect on 1 June 2014. The new 2014 Arbitration Rules and 2014 Expedited Arbitration Rules allow joinder orders by the arbitral tribunal if all the parties involved, including the joining party, so agree. These two sets of rules now also provide that the Center may order, under certain conditions, the consolidation of a new (expedited) arbitration with pending arbitration proceedings. Conditions are the consent by all parties and any appointed arbitral tribunal, as well as that the subject matter is substantially related to, or the same parties are involved in, new and pending proceedings. Further, the preparatory conference has now become a mandatory stage of the arbitration proceedings; it has to be convened within 30 days after the establishment of the arbitral tribunal. Finally, the new 2014 Arbitration Rules and 2014 Expedited Arbitration Rules introduce an emergency relief procedure before the establishment of a tribunal. However, this will, unless the parties agree otherwise, only apply to arbitration agreements concluded on or after 1 June 2014. Further, it does not exclude the possibility to file for emergency relief with state judicial authorities. In 2017, the WIPO Center put a detailed Commentary on the WIPO Arbitration Rules by Phillip Landolt and Alejandro García on its website.

In 2015, the WIPO Center published the WIPO Guide on Alternative Dispute Resolution Options for Intellectual Property Offices and Courts, which provides a broad overview of ADR for intellectual property disputes, and presents options for interested intellectual property offices, courts and other bodies adjudicating intellectual property disputes to integrate ADR processes into their existing services.

In 2017, WIPO published the document 'Guidance on WIPO FRAND Alternative Dispute Resolution (ADR)' on its website, which was developed by the WIPO Center and takes into account comments by telecom stakeholders, the European Telecommunications Standards Institute legal department, WIPO arbitrators and mediators, and the Munich IPDR Forum.

The WIPO Center also administers the domain name administrative dispute resolution procedures under the Uniform Domain Name Dispute Resolution Policy (UDRP). The UDRP applies primarily to international domains. The WIPO Center has been appointed by 74 country code top-level domains as their service provider for their domain name disputes. It also administers cases under the sunrise period policy relating to registrations in the start-up phase of new domains, as well as cases under the ICANN legal rights objection mechanism for new generic top-level domains.

vii Statistics

The 2018 International Chamber of Commerce (ICC) statistical report shows that Switzerland was the second most commonly chosen place of arbitration (78 arbitrations: 38 in Geneva, 32 in Zurich, three in Lausanne, one in Basel, one in Fribourg, one in Lugano, one in Bern and one in Zug), and that 9.25 per cent of the arbitrators were from Switzerland. Regarding the parties, 23 claimants and 18 respondents were from Switzerland, accounting for 1.8 per cent of the total number of parties in ICC arbitrations.

In 2018, 83 new arbitration cases and 11 new mediation cases were submitted to the Swiss Chambers' Arbitration Institution. Of the 2018 arbitration cases, 217 parties were involved in total from 45 different countries. Regarding the parties, 76 per cent were from Europe (including 37 per cent from Switzerland), 11 per cent from Asia and the Middle East, 5 per cent from North America and 8 per cent from other countries. Of the new arbitrations, 86 per cent were held in English, 5 per cent in French, 6 per cent in German, 2 per cent in Italian and 1 per cent in another language. As for the seat of the arbitration, 45 per cent of the arbitrations were conducted in Zurich, 39 per cent in Geneva, 4 per cent in Lugano, 2 per cent in Basle and 6 per cent in other cities (Lausanne, Bern or Neuchatel). Two per cent of the arbitrations had a seat outside Switzerland in 2018. Of these, 26 per cent were conducted before a panel of three arbitrators and 74 per cent before a sole arbitrator; 35 per cent were normal procedures; 61 per cent were expedited; in 1 per cent of the arbitrations, the SCAI was asked to be the appointing authority; and 1 per cent were not determined. There was one emergency relief request under the Swiss Rules in 2018.

The latest available data for CAS stems from 2016: 599 new cases were submitted to the CAS: 100 ordinary procedures, 458 appeal procedures, 28 ad hoc procedures and 13 anti-doping procedures. Regarding awards and advisory opinions, 142 were rendered in 2016, while 457 cases were pending or terminated without an award.

Up to 1 January 2019, the WIPO Center has administered over 600 mediation, arbitration and expert determination cases. Of its mediation and arbitration cases, 27 per cent concerned patents, 23 per cent information and communication technology (ICT) law, 20 per cent trademark, 18 per cent commercial and 12 per cent copyright matters. Regarding industry areas, 32 per cent were in ICT, 15 per cent in life sciences, 14 per cent in mechanical, 11 per cent in entertainment, 5 per cent in luxury goods, 2 per cent in chemistry and 21 per cent in other areas (data for 2017). Of the mediation and (expedited) arbitration cases filed with the WIPO Center, some 40 per cent included an escalation clause providing for WIPO mediation followed by WIPO (expedited) arbitration (2017). In the arbitration cases, the settlement rate was 40 per cent, and in mediation cases 70 per cent.

The WIPO Center assisted parties in over 450 good offices requests.

The WIPO Center has administered some 43,000 cases under the UDRP and related policies, having involved parties from 179 countries and some 79,000 internet domain names. The WIPO Center has also administered over 15,000 cases under sunrise policies and 69 cases filed under the ICANN legal rights objection mechanism.

Furthermore, every year a substantial number of ad hoc arbitrations take place in Switzerland that do not appear in any statistics.

viii Miscellaneous

The Swiss Arbitration Association (ASA) is a non-profit association with more than 1,200 individual members from Switzerland and abroad. The ASA itself does not administer arbitrations. It publishes the quarterly ASA Bulletin, which includes awards, court decisions, materials and articles.36

II THE YEAR IN REVIEW

i Developments affecting international arbitration

There were no legislative changes affecting international arbitration in Switzerland in 2017. The Swiss Federal Council published the draft bill on the revision of Chapter 12 of the PILA with explanatory materials. It provides for a light revision instead of a general overhaul. Some case law of the Swiss Federal Supreme Court on procedural issues shall be codified. Generally, the amendments are moderate. That is also the position taken by the ASA and the leading arbitration practitioners in the official consultation process. There were also no changes to the new Swiss Rules of 2012.

ii Arbitration developments in local courts

In the past year, the Swiss Federal Supreme Court rendered more than 40 decisions in set-aside proceedings.

Awards set aside for lack of jurisdiction

While the chances of success for a challenge of an arbitral award before the Swiss Federal Supreme Court are 7.53 per cent if all grounds of challenges are considered, those that will succeed on the ground of lack of jurisdiction of the arbitral tribunal37 are slightly higher, namely 11.3 per cent.38 Indeed, the Swiss Federal Supreme Court carefully reviews the jurisdiction of an arbitral tribunal, because a valid arbitration agreement ensures the limitation of legal remedies such as a full appeal. In doing so, the Supreme Court follows the principles of contract interpretation. An arbitral tribunal must first find the parties' common actual intention to arbitrate, in particular regarding the scope of the arbitration agreement, that is, most obviously the exclusion of the jurisdiction of state courts (subjective interpretation). Only if such an intent cannot be proven can the parties' declarations be objectively interpreted by finding what reasonable persons in the situation of the parties would have understood in good faith considering the circumstances at the time of the contract's conclusion. This is an issue of law and can be reviewed by the Supreme Court, while the subjective interpretation is, as an assessment of evidence, not subject to review by the Federal Supreme Court. Once the intent of the parties to submit their dispute to arbitration is established, however, the arbitral tribunal must choose the interpretation that favours the validity of the arbitration agreement. Based on these principles, the Swiss Federal Supreme Court set aside two jurisdiction awards, the first rendered by an ad hoc arbitral tribunal and the second by the CAS.

In a decision of 4 October 2017,39 an ad hoc arbitral tribunal had wrongly assumed jurisdiction. Insurance company E had approached insurance company A for reinsurance. A had submitted to E an offer with an insurance slip and a contract endorsement that referred to E's general conditions. These conditions contained an arbitration clause providing for an ad hoc arbitration in Zurich. However, E refused to conclude a contract with A and instead turned to B as its reinsurer. Only thereafter, B concluded a further reinsurance contract with A, which however provided for state court litigation. In 2015, B commenced arbitration proceedings against A before an ad hoc arbitral tribunal seated in Zurich, asking for payment of about 9 million Canadian dollars. A objected, arguing that the arbitral tribunal lacked jurisdiction because the contract between A and B provided for state court litigation. In a partial award the ad hoc arbitral tribunal accepted jurisdiction. A filed a set aside petition before the Swiss Federal Supreme Court.

Referring to its case law on the interpretation of arbitration agreements as explained above, the Supreme Court found that the ad hoc arbitral tribunal had been wrong in assuming jurisdiction. Neither the arbitration agreement contained in the reinsurance contract between E and B nor the indirect reference to an arbitration agreement in A's offer to E with the insurance slip and the contract endorsement referring to E's general conditions containing an arbitration clause bore any relevance for the dispute between A and B. To the contrary, the reinsurance contract between A and B was clear in providing for state court litigation. There was no valid arbitration agreement between B and A.

In a decision of 22 January 2018,40 the Swiss Federal Supreme Court annulled an award of the CAS. A brokerage contract between a football player and his former agent contained a pathological dispute resolution clause referring to 'national and international bodies', but also to the 'jurisdiction and decisions of the courts in the Comercial de Capital Fédéral, República Argentina'. The agent started arbitration proceedings before FIFA's Players' Status Committee, which, however, refused to admit such claim. The football player appealed before the CAS, which annulled the Committee's decision and awarded the agent the requested remuneration. The player then challenged the award of the CAS before the Supreme Court on the basis that it had improperly assumed jurisdiction.

Again, the Supreme Court referred to its case law. It found that the dispute resolution clause did not refer to any arbitral tribunal, and in particular not to the CAS. The reference in the dispute resolution clause did not include a clear intent of the parties to submit any dispute to arbitration by the – in any case only internal – body of the CAS, thereby excluding the jurisdiction of the state courts. To the contrary, the parties had expressly provided for the jurisdiction of the commercial courts of Buenos Aires. The award was set aside.

Arbitral tribunal's jurisdiction to adjudicate retention claims

In a decision of 1 May 2018,41 the Swiss Federal Supreme Court confirmed an arbitral tribunal's jurisdiction decision on the retention claims derived from a mandate agreement between a lawyer and his client. The heir of the client, a foundation, requested, inter alia, the return of a share certificate of a company to which the mandate agreement pertained. The lawyer refused the return, exercising his retention rights.

The Supreme Court rejected the lawyer's challenge for lack of jurisdiction and confirmed the arbitral tribunal's interim award. It found that if the retention rights are sufficiently connected under the applicable substantive law with the claims arising from the contract with the arbitration clause, the arbitral tribunal could also adjudicate the claims based on these retention rights. Only if there were no sufficient connection under the applicable substantive law would the arbitral tribunal lack jurisdiction to adjudicate the retention rights. It must be assumed that the parties intended to submit to arbitration not only the contractual claims but also the secured claims, even if they do not have the same legal ground.

Sufficient domestic link needed for attachment proceedings for an award against a foreign state

In a decision of 7 September 2018,42 the Swiss Federal Supreme Court had to decide on the need of a sufficient domestic link for attachment proceedings to secure the execution of an award against a foreign state. The Swiss Federal Supreme Court held that a sufficient domestic link is also a prerequisite when a party requests an order attaching property in Switzerland belonging to a foreign state based on an arbitral award.

Based on a UNCITRAL arbitral award, a Guernsey company requested the attachment of real estate property of the Republic of Uzbekistan in Switzerland. This is an interim measure provided for under the Swiss Debt Collection and Bankruptcy Act for securing the enforcement of monetary claims.

The district court granted the request for the attachment order, but then itself sustained the objection of Uzbekistan and annulled its attachment order. Having also lost at the Court of Appeals of the Canton of Schwyz, the Guernsey company filed an appeal with the Supreme Court in regular appeals proceedings.

The Swiss Federal Supreme Court emphasised that it can examine the application of federal law only under the limited aspect of arbitrariness as a violation of constitutional rights. The first issue was whether property of a foreign state in Switzerland can be attached. This presupposes that the alleged claim results from a legal relationship that is based on an act of the foreign state as a private player (jure gestiones) and not as a sovereign (jure imperii), and that such a legal relationship has a sufficient domestic link to the Swiss territory. The second issue was then whether the New York Convention would prevent the Swiss courts from examining state immunity in such attachment cases. As regards the sufficient domestic link, the Supreme Court held that the claims must derive from a legal relationship established in Switzerland, or that they have to be fulfilled there or that the foreign state must have at least taken actions to establish a place of performance in Switzerland: the mere presence of assets of the foreign state located in Switzerland or the fact that the claim had been awarded by an arbitral tribunal seated in Switzerland would not suffice. According to the Supreme Court, the existence of a sufficient domestic link relates to the immunity of foreign states from Swiss jurisdiction, and thus qualifies as a question of admissibility that must be examined first and ex officio by any court. If there is no sufficient domestic link, the Swiss court does not have jurisdiction and must terminate the proceedings even before getting to the merits of the case. The Supreme Court rejected the argument of the Guernsey company that Article V of the New York Convention does not list any insufficient domestic link criteria. The Supreme Court confirmed the exclusivity of the grounds for the refusal of the recognition and enforcement of a foreign arbitral award under Article V of the New York Convention, but argued that the examination of the grounds is a question of the merits of the case that presupposes that such court proceedings are admissible in procedural terms. If the procedural requirement of the domestic link is not fulfilled, a Swiss court adjudicating on a request for an attachment order cannot even address the question of whether or not the foreign award can be executed on the basis of the reasons for the recognition and enforcement of the foreign award in Switzerland.

Accordingly, the Supreme Court rejected the Guernsey company's appeal against the decision of the Court of Appeals of the Canton of Schwyz. It has to be noted that this was a case decided under the very limited review of arbitrariness of a court decision, which applies not only to the reasoning of the decision, but also to the result itself. The Supreme Court quashes such a court decision only if it contains clear contradictions of the facts of the case, a blatant violation of a legal provision or principle, or both, not only in the reasoning of the decision but also in the result. This was not the case here.

Unenforceable prior foreign judgment does not bind an arbitral tribunal

In a decision of 18 April 2018,43 the Swiss Federal Supreme Court denied any res judicata effect of prior foreign judgments rendered in violation of an arbitration clause in the underlying contracts.

Based on two loan agreements that contained arbitration clauses, proceedings before the state courts of the British Virgin Islands and Russia were filed. The defendants in the state court proceedings then initiated ICC arbitration in Zurich. The arbitral tribunal accepted jurisdiction and rendered a final award. This award was challenged with the argument that by ignoring the res judicata effect of the judgment rendered in Moscow, it had violated procedural public policy.

However, the Supreme Court found that this was not the case here as the prior Russian judgment was not enforceable in Switzerland. The Moscow Court had disregarded the arbitration clause despite it having been raised in an objection to its jurisdiction. Nor had the Moscow Court ruled that the arbitration clause was invalid. The judgment of the Moscow Court could thus not have any res judicata effect in the Swiss arbitration proceedings. The award did not breach procedural public policy.

iii Investor–state disputes

Switzerland is a contracting state to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), which entered into force for Switzerland on 14 June 1968. Switzerland has also concluded among the highest numbers of bilateral investment treaties (BITs).

In the past year, no awards rendered in Switzerland involving investors or states have been published. While in particular ad hoc investment treaty arbitrations are regularly seated in Switzerland, the Swiss Federal Supreme Court seldom needs to decide on annulment actions against awards rendered in BIT matters. However, last year the Supreme Court rejected three challenges of investment treaty awards rendered in Switzerland.

Territorial scope of the BIT between Russia and Ukraine of 1998

In two decisions of 16 October 2018, the Swiss Federal Supreme Court refused to set aside two interim awards accepting jurisdiction that were rendered by the same arbitral tribunal in investor–state arbitrations.

In the first arbitration,44 a Ukrainian company active in the fuel market in Crimea initiated UNCITRAL arbitration proceedings against Russia alleging that the measures implemented by Russia amounted to an expropriation of its investments in Crimea and violated the Ukraine–Russia BIT. Russia contested the jurisdiction of the arbitral tribunal, did not appoint an arbitrator and did not take part in the arbitral proceedings. In an award on jurisdiction, the tribunal accepted jurisdiction essentially based on three findings:

  1. the concept of territory in Article 1(4) of the BIT encompasses regions over which a contracting state exercises de facto control, such as Crimea. It was therefore unnecessary to determine whether the annexation of Crimea was lawful under public international law;
  2. the tribunal found that an investment under Article 1(1) of the BIT did not have to be initially made in the territory of the Russian Federation, but that it was sufficient that the investment was located in the territory only as a result of subsequent border changes; and
  3. the Ukrainian company qualified as an investor under Article 1(2)(b) of the BIT.

Russia filed an action to set aside the award on jurisdiction. As regards the notion of territory, the Supreme Court confirmed that Crimea was a territory of the Russian Federation under Article 1(4) of the BIT since it exercised de facto control, which was undisputed by Russia, as was the fact that the issue of the legality of the annexation of Crimea was irrelevant for the purpose of the application of the BIT. As regards the notion of investment, the Supreme Court followed the asset-based model, since Article 1(1) of the BIT contained a non-exhaustive list of assets qualifying as investments. Since the BIT serves the promotion and protection of investments, the necessary conditions only have to be fulfilled at the time of the infringement and not at the time of contracting. The company thus qualified as an investor. Accordingly, the challenge was dismissed, as was Russia's challenge against a second award accepting jurisdiction by the same tribunal in proceedings commenced by another company.45

India's unsuccessful challenge of interim award in an investor–state arbitration

In a decision of 11 September 2018,46 the Swiss Federal Supreme Court denied India's request to set aside an interim award in which the arbitral tribunal, inter alia, accepted jurisdiction over claims filed under the Germany–India BIT.

The dispute relates to a 20 per cent interest in an Indian telecom company held by the wholly owned Singaporean subsidiary of Deutsche Telekom. The Indian telecom company had entered into a contract with an Indian state-owned satellite company for the construction, launch and operation of two satellites, and to provide S-band spectrum to allow the Indian telecom company to offer wireless telecom services. This contract was cancelled by the Indian satellite company based on force majeure, as a new Indian government policy prohibited the allocation of S-band spectrum to parties unconnected to India's space programme. The UNCITRAL tribunal seated in Geneva issued an interim award. It rejected India's jurisdictional objections and declared that the cancellation of the contract between the state and satellite company, on the one hand, and the Indian telecom company, on the other, had violated the BIT's fair and equitable treatment standard. The tribunal proceeded to the quantum phase.

In support of its challenge of the interim award, India submitted the same jurisdictional arguments as before the tribunal. The Swiss Federal Supreme Court discussed them in detail. As regards India's first argument, that Deutsche Telekom was an indirect investor making an indirect investment, the Supreme Court first discussed definitions of the term investment, which may differ. It found that the acquisition of shares, here in an Indian company, itself constitutes an investment. As for the indirect character of the investment through a Singaporean subsidiary of Deutsche Telekom, the Supreme Court followed the view of most arbitral tribunals that the definition of investment includes an indirect investment. The second argument of India was that Telekom's activities were a non-protectable pre-investment. The Supreme Court rejected this distinction between a protection of the establishment of business against the alleged protection of business once it has become operational only. Third, as for India's argument that for the protection of its national interests it was imperative to withdraw the S-band from commercial use and to cancel the contract with the Indian telecom company, the Supreme Court held that the tribunal's finding that this national security question is an issue of merits rather than of jurisdiction was correct. Finally, the Supreme Court also rejected India's further argument that the investment was unlawful as lacking any factual merit.

Cases involving Swiss parties pending in ICSID proceedings

In the two closely related cases (the tribunals are also composed of the same three arbitrators), Bernhard von Pezold and others v. Republic of Zimbabwe47 and Border Timbers Limited, Border Timbers International (Private) Limited, and Hangani Development Co (Private) Limited v. Republic of Zimbabwe,48 the two arbitral tribunals constituted of the same members rendered awards on 28 July 2015. The cases were heard together, but were never formally consolidated. In both proceedings, the Republic of Zimbabwe initiated annulment proceedings on 2 November 2015. Since then, the ad hoc committees have issued three decisions on provisional measures requested by Zimbabwe. In two identical decisions of 21 November 2018, the ad hoc committees upheld the two awards issued in favour of the claimants. It rejected the arguments of Zimbabwe, including that:

  1. the tribunal had denied the state's right to be heard;
  2. the tribunal had shown itself at the hearing to be partial;
  3. the tribunal's chair lacked impartiality;
  4. the tribunal had exceeded its power by applying customary international law and Zimbabwean law rather than the relevant BITs when deciding on Zimbabwe's necessity defence;
  5. it did not apply the relevant exchange control laws; and
  6. it wrongly characterised the state's illegality defence.

In the first case, the claimants, who are German or dual German–Swiss citizens, sought damages for the expropriation of three commercial farms that occurred under the land redistribution policy introduced in Zimbabwe. They contended that Zimbabwe breached its obligations under its BITs with Germany and Switzerland to provide full protection for their commercial farms and equitable treatment. In its award, the tribunal ordered Zimbabwe to return legal title to three estates to the von Pezold family, this being the most appropriate type of relief. Restitution would not be impossible or disproportionate. If legal title to the farms is not restored, Zimbabwe will have to compensate the family with US$196 million for land and production losses. If restitution takes place, the state will have to pay one-third of the damages, amounting to US$65 million. Both sums include US$1 million in moral damages for one member of the family.

In the second case, Border Timbers is a Swiss-controlled forestry company whose majority shareholders are members of the von Pezold family. The claimants brought their claim under the Switzerland–Zimbabwe BIT because of the alleged expropriation of forestry land and timber-processing enterprises. The claimants contended that Zimbabwe did not prevent illegal squatters from occupying the forestry plantations and setting fire to them. In its award, the arbitral tribunal ordered Zimbabwe to return the estate owned by Border Timbers, and to pay US$125 million damages to the company and its subsidiaries. This award also included US$1 million in moral damages. The arbitral tribunal further held that, to prevent double recovery by the von Pezold family, only one of the awards can be enforced in full, and that 'to the extent that one award is enforced, the other cannot be enforced to the same amount'.

In the ICSID arbitration Flughafen Zürich AG and Gestión e Ingeniería IDC SA v. Bolivarian Republic of Venezuela,49 the Swiss airline services company and its Chilean partner sued Venezuela for the cancellation of a contract for the development, operation and maintenance of an airport on the island of Margarita in the Caribbean Sea.

The arbitral tribunal rendered its award on 18 November 2014 with a partial dissent by one arbitrator. The majority of the tribunal found that the government of the Venezuelan state of Nueva Esparta, by cancelling the contract and taking over control of the airport later on, had committed a direct expropriation under Venezuela's BITs with Switzerland and Chile; the majority also found that the Venezuelan Supreme Court's actions constituted a denial of justice. The third arbitrator issued a partial dissent, agreeing with the majority on the state's liability for expropriation but arguing that this was consummated by a later decree of the central government; further, he rejected the denial of justice. The tribunal ordered the state to pay more than US$19 million plus interest from the date of the cancellation of the contract in 2005. Venezuela initiated annulment proceedings on 27 March 2015. In its decision of 15 April 2019, the ad hoc committee upheld the award. The decision is yet to be published.

In the ICSID arbitration Koch Minerals Sàrl and Koch Nitrogen International Sàrl v. Bolivarian Republic of Venezuela50 concerning the construction and operation of a fertiliser plant, the proposal for the disqualification of the three members of the tribunal had been declined by the Chair of the Administrative Council. The parties filed their post-hearing briefs on 30 January 2015 and their statements of costs on 13 February 2015. Following the passing away of one arbitrator, the arbitral tribunal had been reconstituted with the appointment of a new arbitrator on 1 February 2016. On 30 October 2017, the tribunal rendered its award with a partial dissenting opinion by one arbitrator. It found Venezuela liable under its BIT with Switzerland for the expropriation of Koch Minerals' 35 per cent interest in Fertinitro, the country largest fertiliser producer, which had been nationalised. On 18 December 2017, Venezuela filed a request for rectification of the award, upon which the tribunal issued on 11 April 2018 a decision on the rectification of the award. The tribunal also ruled that the second claimant, Koch Nitrogen, should be compensated for the loss of its rights under an associated long-term agreement for the purchase of ammonia and urea produced at the Fertinitro plant. The annulment proceedings initiated by Venezuela on 17 August 2018 were stayed for non-payment of the required advances on 18 April 2019.

In the ICSID arbitration Alpiq AG v. Romania51 concerning cancelled energy supply contracts, the tribunal rendered its award on 9 November 2018 and a rectification of the award on 21 March 2019. It rejected the US$450 million claim brought by Alpiq under the Romania–Switzerland BIT and the Energy Charter Treaty. After rejecting a number of jurisdictional objections raised by Romania, the tribunal concluded on the merits that Romania was not liable for the decision of its state-owned energy company Hidroelectrica to terminate two energy supply contracts with the local subsidiaries of the claimant, Alpiq RomIndustries and AlpiqEnergie. These decisions had not been taken by the government but by the judicial administrator appointed after the insolvency of Hidroelectrica. The arbitral tribunal found that this decision making was not controlled by the government. Alpiq had also failed to establish a denial of justice, as the Romanian courts decided sometimes in favour of and sometimes against Hidroelectrica.

In the ICSID arbitration OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v. Kingdom of Spain,52 the claimants submitted a claim regarding a renewable energy generation enterprise under the Energy Charter Treaty. On 25 October 2018, each party had to file a reply submission on costs.

In the ICSID arbitration Glencore International AG and CI Prodeco SA v. Republic of Columbia,53 the claimants assert that the Columbian authorities sought to revoke an amendment to a concession agreement after it was signed, and after significant investments had been made to expand the Calenturitas coal mine on the basis of the amendment. On 24 September 2018, each party had to file a submission on costs.

In the ICSID arbitration Pawlowski AG and Project Sever sro v. Czech Republic54 concerning a real estate development, the tribunal issued Procedural Order No. 3 of 13 March 2019 concerning production of documents.

The ICSID arbitration Mabco Constructions SA v. Republic of Kosovo55 concerns a dispute about the acquisition of shares in a company in the tourism industry under the BIT between Switzerland and the Republic of Kosovo of 2011 and the investment law of the Republic of Kosovo of 2014. On 5 April 2019, respondent had to file a memorial on jurisdiction.

In the ICSID arbitration DCM Energy GmbH & Co. Solar 1 KG and others v. Kingdom of Spain,56 four German claimants and one Swiss claimant filed a claim concerning a renewable energy generation enterprise in Spain under the Energy Charter Treaty. On 3 May 2019, each party had to file a request for the tribunal to decide on the production of documents.

In the ICSID arbitration EBL (Genossenschaft Elektra Baselland) and Tubo Sol PE2 S.L. v. Kingdom of Spain57 regarding a renewable energy generation enterprise in Spain filed under the Energy Charter Treaty, the tribunal issued Procedural Order No. 1 concerning procedural matters on 21 March 2019.

III OUTLOOK AND CONCLUSIONS

The revised Swiss Rules 2012 continue to be very well received. More than 1,100 cases have now been conducted under the Swiss Rules with their successful system of light administration. The newly introduced emergency arbitrator, together with the already well-established expedited procedure and the pioneering approach to multiparty situations, all promise that the Rules will remain some of the most attractive dispute resolution rules to be stipulated in international commercial contracts. In addition, Chapter 12 of the PILA, in the entire 30 years of its existence, has only seen one change in response to a decision of the Federal Supreme Court58 and a few adaptations following new federal acts with the abolition of one provision of no practical use, and thus has proven to be effective in addressing all new issues in arbitration.


Footnotes

1 Martin Wiebecke is an attorney at law at Anwaltsbüro Wiebecke.

2 Official versions in German, French and Italian and an unofficial English translation are available at www.swissarbitration.org.

3 Ibid.

4 PILA, Article 176(1).

5 PILA, Article 176(2).

6 PILA, Article 176(3).

7 PILA, Article 179.

8 PILA, Article 180.

9 PILA, Article 182(3).

10 PILA, Article 183(1) and (2).

11 PILA, Article 184.

12 For example, if written witness statements are filed, there will be only a short direct examination of the witnesses.

13 DFT 127 III 279 of 14 May 2001.

14 PILA, Article 186(1 bis).

15 PILA, Article 186(2) and (3).

16 PILA, Articles 188 and 189.

17 F Dasser and P Wójtowicz, 'Challenges of Swiss Arbitral Awards – Updated Statistical Data as of 2017', 36 ASA Bulletin 2/2018, p. 276 (282).

18 PILA, Article 192(1).

19 See, for example, decision 4A_53/2017 of 17 October 2017.

20 Decision DTF 118 II 199 of 11 March 1992.

21 PILA, Article 194.

22 Available in 15 languages at www.swissarbitration.org.

23 Swiss Rules, Article 1(4).

24 Swiss Rules, Article 40(4).

25 Swiss Rules, Article 1(1).

26 Swiss Rules, Article 1(3).

27 Swiss Rules, Article 1(2).

28 Swiss Rules, Article 33(1).

29 Swiss Rules, Article 15(8).

30 Swiss Rules, Article 26.

31 Swiss Rules, Article 43.

32 Swiss Rules, Article 9.

33 Swiss Rules, Article 15(1).

37 Article 190(2) (b) PILA.

38 F Dasser and P Wójtowicz, 'Challenges of Swiss Arbitral Awards – Updated statistical data as of 2017', 36 ASA Bulletin 2/2018, p. 276 (280/281).

39 Decision 4A_150/2017 of 4 October 2017.

40 Decision 4A_432/2017 of 22 January 2018.

41 Decision 4A_583/2017 of 1 May 2018.

42 Decision 5A_942/2017 of 7 September 2018.

43 Decision 4A_247/2017 of 18 April 2018.

44 Decision 4A_396/2017 of 16 October 2018.

45 Decision 4A_398/2017 of 16 October 2018.

46 Decision 4A_65/2018 of 11 December 2018.

47 ICSID case No. ARB/10/15.

48 ICSID case No. ARB/10/25.

49 ICSID case No. ARB/10/19.

50 ICSID case No. ARB/11/19.

51 ICSID case No. ARB/14/28.

52 ICSID case No. ARB/15/36.

53 ICSID case No. ARB/16/6.

54 ICSID case No. ARB/17/11.

55 ICSID case No. ARB/17/25.

56 ICSID case No. ARB/17/41.

57 ICSID case No. ARB/18/42.

58 See Section I.iii.