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:
- if the sole arbitrator was not properly appointed or if the arbitral tribunal was not properly constituted;
- if the arbitral tribunal wrongly accepted or declined jurisdiction;
- if the arbitral tribunal's decision went beyond the claims submitted to it, or failed to decide one of the items of the claims;
- if the principle of equal treatment of the parties or the right of the parties to be heard was violated; and
- 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 renders its decisions on average within five months.17 The 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, their 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 the 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 the 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 the 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 the 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 the 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 (CAS)
The 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 370 arbitrators from 85 countries with specialist knowledge of arbitration and sports law. Of these arbitrators, 92 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. Furthermore, the CAS establishes an ad hoc division with special procedural rules for specific occasions, such as for the Olympic Games, the Commonwealth Games or 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 or 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 2017, 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 the 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 the parties, the consolidation of the 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 the 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 58 mediators.
As of 1 March 2013, further amendments of the CAS Rules came in 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 the 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 been produced already before the first instance tribunal. As of 1 January 2016, minor changes entered into force dealing mainly with formalities.
In 2016 and 2017, various procedural provisions were 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 the arbitral panel and the 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 the 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 has been developed by the WIPO Center and takes into account comments by telecom stakeholders, the European Telecommunications Standards Institute (ETSI) 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.
The 2017 International Chamber of Commerce (ICC) statistical report shows that Switzerland was the second most commonly chosen place of arbitration (90 arbitrations: 51 in Geneva, 36 in Zurich, one in Lausanne, one in Lugano and one in Bern), and that 7.80 per cent of the arbitrators were from Switzerland. Regarding the parties, 28 claimants and 16 respondents were from Switzerland, accounting for 1.90 per cent of the total number of parties in ICC arbitrations.
In 2017, 74 new arbitration cases and four new mediation cases were submitted to the Swiss Chambers' Arbitration Institution. Of the 2017 arbitration cases, 188 parties were involved in total from 48 different countries. Regarding the parties, 66 per cent were from Europe (including 32 per cent from Switzerland), 4 per cent from North America, 2 per cent from Africa, 1 per cent from South America, 11 per cent from Asia, 5 per cent from the Middle East, and 8 per cent from Russia. Of the new arbitrations, 69 per cent were held in English, 12 per cent in French, 7 per cent in German and 8 per cent in Italian. As for the seat of the arbitration, 38 per cent of the arbitrations were conducted in Geneva, 40 per cent in Zurich, 12 per cent in Lugano, 4 per cent in Basle, 3 per cent in Lausanne, Bern or Neuchatel, and 3 per cent at undisclosed places. There were no Swiss Rules arbitrations with a seat outside of Switzerland in 2017. Of these arbitrations, 41 per cent were conducted before a panel of three arbitrators and 59 per cent before a sole arbitrator; 54 per cent were normal procedures, 43 per cent were expedited, and 3 per cent were not determined. There was no emergency relief request under the Swiss Rules in 2017.
In 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 2018, the WIPO Center has administered some 530 mediation, arbitration and expert determination cases (40 in 2017). Of its mediation and arbitration cases, 28 per cent concerned patent, 25 per cent information and communication technology (ICT) law, 17 per cent trademark, 21 per cent commercial and 9 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. 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. 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 340 'Good Offices' requests (90 in 2017).
The number of cases administered by WIPO under the Uniform Domain Name Dispute Resolution Policy procedures exceeds 39,000, having involved parties from 177 countries and some 73,000 internet domain names (3,073 in 2017). The WIPO Center has also administered over 15,000 cases under sunrise policies and 69 cases filed under the ICANN Legal Rights Objection (LRO) mechanism.
Furthermore, every year a substantial number of ad hoc arbitrations take place in Switzerland that do not appear in any statistics.
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. A possible amendment of Chapter 12 of the PILA is still under consideration by the government. The mandate given by Parliament is, however, for light revision instead of a general overhaul. That is also the position taken by 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.
Right to be heard (West Bank Casino and Hotel)
In a decision of 30 May 2017,37 the Swiss Federal Supreme Court partially annulled an award and remanded it back to the arbitral tribunal, owing to a violation of the right to be heard.
In dispute were concessions for a tourism project consisting of a casino and a hotel in the West Bank. The Liechtenstein Company A had entered into a contract with the state of Palestine (alias Palestinian Authority) and the Palestinian Company B concerning the construction and the operation of a casino and a hotel in the West Bank in 1996. The casino opened in 1992 and the hotel in 2000. Owing to the second intifada, the operation of the casino was terminated in October 2000, while the hotel remained open. In December 2000, the parties concluded additional agreements for the project.
In 2002, the state of Palestine issued a Criminal Code that declared public gambling illegal. After several futile attempts to renew the concession for the tourism project, A initiated arbitration proceedings against the state of Palestine and B under the Swiss Rules. It requested that the state of Palestine be ordered to procure a casino licence and all other permits and licences necessary to operate the casino and the hotel. It also requested damages of US$1.4 billion plus interest. The state of Palestine contested the jurisdiction of the arbitral tribunal. In the alternative, it asked that the claims should be dismissed. B moved for dismissal of claims.
In an award of 2 August 2016, the arbitral tribunal dismissed the relief sought by A in its entirety. It found that, while the agreements had been concluded in a valid manner, Palestinian law prohibiting gambling would render the effective fulfilment of the agreements impossible. The arbitral tribunal rejected the claims for damages because of a non-liability clause and since no causal link between the contract breach and the alleged damage could be proven.
A commenced set-aside proceedings for violations of public policy and its right to be heard under Articles 190(2)(e) and (d) of the PILA. The Supreme Court refused A's argument that the arbitral tribunal had violated the principle of pacta sunt servanda. This principle is violated only if an arbitral tribunal fails to apply a contractual clause even though it acknowledges the validity of the contract. The arbitral tribunal's contract interpretation itself and the respective legal consequences are not covered by that principle. Therefore, there was no violation of public policy.
As regards the alleged violation of the right to be heard, A argued that the arbitral tribunal had dismissed its prayer for relief relating to the hotel without considering that the operation of a hotel resort is not illegal in the state of Palestine. The Supreme Court followed A and held that the arbitral tribunal should have considered the issuance of separate concessions for the operation of the hotel in its award and, in this respect, breached A's right to be heard. The Supreme Court therefore partially set aside the award and remanded it to the arbitral tribunal for a decision on this issue.
No challenge of partial interim award on jurisdiction – Yukos comes to Switzerland
In a decision of 20 July 2017,38 the Swiss Federal Supreme Court held that a decision by an arbitral tribunal on jurisdiction must be comprehensive and final in order to be challenged in set-aside proceedings.
In the second wave of Yukos arbitrations, Yukos Capital Sàrl of Luxembourg commenced an arbitration under the UNCITRAL Arbitration Rules against the Russian Federation based on the Energy Charter Treaty and requested payment of US$13 billion for illegal expropriation of its loans, which would qualify as investment. Russia objected to the jurisdiction of the arbitral tribunal in Geneva on five alternative grounds. The arbitral tribunal then decided to deal initially with three of these five grounds considering the other two to be so closely linked to the merits that they should be dealt with only later in the merits phase. The arbitral tribunal then rejected Russia's objections in a partial interim award on jurisdiction.
For Russia, the question arose as to whether it was necessary to challenge this partial interim award on jurisdiction within 30 days of notification as no clear case law existed that would clarify whether a challenge of the grounds in a partial award on jurisdiction could be still brought later upon receipt of the arbitral tribunal's decision on the other two jurisdictional objections, possibly together with the final award on the merits. This question has now been answered by the Supreme Court, which decided that a partial interim award on jurisdiction does not have to be challenged immediately. The applicable Article 190(3) of the PILA only applies to challenges of final decisions of an arbitral tribunal, wrongly either accepting or declining jurisdiction.
This also means that the Supreme Court did not have to decide yet on Russia's objection concerning the provisional application of the ECT by Russia, which was rejected by the arbitral tribunal and is the most interesting issue in the international context.
Requirements for an independent expert appointed by the arbitral tribunal
In a decision of 28 August 2017,39 the Swiss Federal Supreme Court confirmed that a party has the right to request that the arbitral tribunal appoint an independent expert. Discussing the conditions for the appointment of such an independent expert, the Supreme Court found that they were not fulfilled in this case and rejected a challenge on the basis that the applicant's right to be heard had been violated.
In a contract relating to the development of four tourism projects in a Middle Eastern country, the claimant company filed its request for ICC arbitration in 2008. The arbitral tribunal issued an interim award in 2011 dismissing the respondent state's jurisdictional objections and bifurcated liability and damages. In a partial award issued in February 2013, it held that the state had breached the contract and was liable for the failure of two of the four tourism projects. On 16 April 2017, the arbitral tribunal issued its final award, essentially rejecting both sides' positions. The president of the arbitral tribunal ruled alone, and each co-arbitrator issued a dissenting opinion, as is possible under the 1998 ICC Rules when there is no majority.
The company challenged the award, arguing that the arbitral tribunal had violated its right to be heard by refusing to appoint an independent expert to calculate the company's lost profits.
The Supreme Court confirmed that parties have a right to request that an arbitral tribunal appoint an independent expert, subject to the following prerequisites: (1) an express request by a party; (2) compliance with the formal requirements and time limits, as per the applicable procedural rules and procedural timetable; (3) explanation of the relevance of the expert report for the arbitral tribunal's decision; (4) submission of documents for the instruction of the expert; (5) advance on costs for the independent expert by the requesting party. As for the relevance of the expert report, the Court further held that the facts to be proven have to be technical or require specialised knowledge the arbitrators do not have and that they cannot be proven in a different way.
These conditions were not met in this case as the company could not rely on the fact that both parties had jointly requested an expert report. While it had then itself requested an expert report, it had also asked the arbitral tribunal to render a decision on the case as it stood. Furthermore, the company had not sufficiently explained the object of the expert report and shown the relevance of the facts to be proven by it.
Waiver of the right to an action for annulment
In a decision of 17 October 2017,40 the Swiss Federal Supreme Court held that a ground for challenge cannot be discussed as a ground for revision when the parties have excluded an action for annulment by mutual agreement.
In a UNCITRAL arbitration between the Republic of Croatia and the MOL Hungarian Oil and Gas Company PLC (MOL) concerning the privatisation of the Croatian energy company INA, Croatia had alleged that agreements granting MOL the control of managing rights in INA had been obtained by bribing the former Prime Minister of Croatia. The arbitral tribunal seated in Geneva dismissed Croatia's allegations and requests for lack of evidence of the alleged bribes.
Croatia then filed an action for annulment before the Supreme Court and also, in the alternative, a petition that the Supreme Court should order the revision of the award. Both petitions were based on the contention that Croatia had, after the issuance of the award but still within the deadline for the action for annulment, discovered that the arbitrator nominated by itself had failed to disclose an alleged conflict of interest.
The Supreme Court found that the parties had validly agreed on a waiver of the annulment of an award under Article 192(1) of the PILA. It further held that such a waiver also extends to potential requests for a revision, at least as far as the same ground relied upon can be challenged with an annulment action (i.e., here Article 190(2)(a) of the PILA concerning the proper constitution of the arbitral tribunal).
Iura novit arbiter
In a decision of 11 January 2018,43 the Swiss Federal Supreme Court held that an arbitral tribunal may in its legal analysis exceed the legal arguments submitted by the parties under the principle of iura novit arbiter. The arbitral tribunal does not surprise the parties if it applies the law in a different manner than the parties had anticipated.
In a dispute concerning the earn-out plan in a share purchase agreement governed by Swiss law, the arbitral tribunal granted about three quarters of the earn-out payment requested by the claimant. The parties had submitted different methods for the calculation of that earn-out. The respondent applied for an annulment of the award based on a violation of its right to be heard and violation of the pacta sunt servanda principle (i.e., public policy).
As regards the purported violation of the respondent's right to be heard, the Supreme Court rejected the respondent's arguments that the arbitral tribunal failed to consider its defence arguments and that the award contained surprising and unforeseeable considerations. This duty is violated when an arbitral tribunal, either inadvertently or as a result of a misunderstanding, does not consider allegations and arguments submitted and evidence offered by the parties which are relevant to the outcome of the dispute. However, the aggrieved party has to establish how the arbitral tribunal did not consider such submissions and evidence and how this caused allegedly the wrong decision. Specifically as regards iura novit arbiter, the Supreme Court noted that the right to be heard is not unlimited. Unless the arbitral tribunal intends to base its decision on a legal rule which has not been mentioned in the arbitral proceedings, as long as a factual element has been alleged and proven in accordance with the applicable laws, an arbitral tribunal is not required to give the parties specific notice of the decisive character of that element. The Supreme Court found that the principle of iura novit curia applies to arbitral tribunals seated in Switzerland. However, the parties have a burden to discuss the possible scenarios and to develop their respective arguments, including subsidiary submissions. In this case, the Supreme Court rejected the notion that there were surprising considerations in the award.
As for the second alleged violation (i.e., that of the pacta sunt servanda principle) the Supreme Court found that, in the context of public policy under Article 190(2)(e) of the PILA, pacta sunt servanda is violated only if the award shows that a contractual term was not applied even though the arbitral tribunal considered the parties to be bound by that term, or conversely if a contractual term is applied, but the arbitral tribunal considers the parties not to be bound by it. However, contract interpretation itself is not a part of pacta sunt servanda. The Supreme Court therefore also dismissed this argument and the action to set aside.
Swiss Federal Supreme Court confirms independence of CAS
In a decision of 20 February 2018,44 the Swiss Federal Supreme Court once again had the opportunity to address the question of the independence of the Court of Arbitration for Sport (CAS) from sports federations, in this case the International Federation of Football Associations, FIFA. It held that the CAS is independent from FIFA and rejected the annulment action.
The case was based on an action for annulment filed by a Belgian football club that was sanctioned by the FIFA Disciplinary Committee for violations of certain articles of FIFA's Regulation on the Status and Transfer of Players. This decision had been upheld both by the FIFA Appeal Committee and then in a final award rendered by the CAS.
In its annulment action, the club relied inter alia on the ground that the arbitral tribunal had not been properly constituted according to Article 190(2)(a) of the PILA. The CAS, it argued, could not be considered to be a true arbitral tribunal as the sports associations which are responsible for most of the CAS's business are also its main source of funding. The club contended that CAS awards would be influenced to the detriment of FIFA's opponents in disputes before the CAS in view of the risk that the CAS might lose such business. Also, under the CAS Code of Sports, draft awards by CAS arbitral tribunals have to be submitted to the CAS's Secretary General for scrutiny, meaning that he could influence the outcome of the case.
The defence by FIFA and the CAS gave some important insight into the CAS's finances. Providing 1.5 million Swiss francs a year, FIFA is the second-largest contributor after the IOC, which provides 7.5 million Swiss francs a year. Given the CAS's total annual budget of 16 million Swiss francs, FIFA and the IOC thus account for 9 and 47 per cent respectively, or 56 per cent combined. The Supreme Court also noted that 65 per cent of the CAS's cases are related to football, but only 5 per cent of those involve FIFA as a party.
In its reasoning, the Swiss Federal Supreme Court first referred to its landmark decision Lazutina of 2003,45 in which the Supreme Court found that the CAS is sufficiently independent from the IOC and other users and that its awards qualify as independent decisions. The Court then referred to the Pechstein decision of the German Bundesgerichtshof in 2016, which had also found that the CAS is an independent and neutral arbitral institution. The Supreme Court further addressed other foreign judgments. It saw no compelling reasons to reconsider this established case law under the aspect that FIFA should be treated differently than other international federations.
As for FIFA's annual contribution to the CAS, the Swiss Supreme Court considered that it would hardly be possible to find organisations other than sports associations to finance the CAS. The only alternative would be to ask the athletes themselves and other sports institutions to provide equal financial contributions. This, however, would be to their detriment and possibly prevent them from having access to the CAS. The Supreme Court further stated that the scrutiny process under Article R-59(2) of the CAS Code of Sports cannot call the CAS's independence into question. As none of the other grounds for annulment raised by the club were well founded, the Supreme Court rejected the application to set aside.
Swiss Federal Supreme Court confirms sanctions against Mr Platini
In a decision dated 29 June 2017,46 the Swiss Federal Supreme Court rejected Mr Platini's action for annulment of a decision of the CAS based on alleged arbitrariness.
In his previous function as president of the Union of European Football Associations (UEFA), Mr Platini had received from the former president of FIFA, Josef Blatter, inter alia a payment of 2 million Swiss francs without contractual basis and certain other benefits as member of the FIFA Executive Committee. The FIFA Ethics Committee then banned Mr Platini from any football-related activity for eight years, which was reduced by the FIFA Appeal Committee to six years and then by the CAS to four years.
This CAS award was upheld by the Supreme Court, which addressed as a preliminary matter the question of whether the arbitration had to be considered international or domestic, leading to the application of either the PILA or the CCP.47 It found that the time of the conclusion of the arbitration agreement is decisive in this respect and not the moment when the arbitral proceedings are commenced. As Mr Platini was at that time domiciled in France and only moved to Switzerland later on, this arbitration was international.
That finding would have prevented the arbitral tribunal from ruling on Mr Platini's challenge of the award as arbitrary as this is a ground for an annulment only under the CCP for domestic awards, but not under the PILA for international awards. However, the Supreme Court found that Mr Platini could rely on this ground in (procedural) good faith as FIFA as respondent had failed to object to the incorrect qualification of the dispute as domestic by the CAS arbitral tribunal.
However, the Swiss Federal Supreme Court found that the award was not arbitrary as it was neither based on findings that manifestly contradicted the facts of the case nor was it manifestly unlawful or unfair. Hence Mr Platini's action for annulment was rejected.
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 again the annulment of an investment treaty award.48 After the host state had started increasing the regulation of slot machines in which market the investors had invested and then, subject to certain exceptions, finally banned such machines, the investors terminated their investment. In the investment arbitration proceedings against the host state they claimed the violation of the fair and equal treatment standard (FET) under the BIT and unlawful expropriation. The arbitral tribunal seated in Geneva found that the increased taxation violated the FET standard, but dismissed the argument of unlawful expropriation. In its appeal to the Swiss Supreme Court the host state argued that the tribunal had wrongly applied the FET standard and thereby violated public policy, inter alia, by limiting the sovereignty of the host state in fiscal matters. The Supreme Court held that as regards investment treaty awards, the same rules for challenges apply as in the other types of arbitration. Thus, it cannot review whether the tribunal correctly applied and interpreted the FET standard, and rejected the challenge.
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 Zimbabwe49 and Border Timbers Limited, Border Timbers International (Private) Limited, and Hangani Development Co (Private) Limited v. Republic of Zimbabwe,50 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 issued three decisions on provisional measures requested by Zimbabwe. In decisions of 24 April 2017, the ad hoc committees rejected the Republic of Zimbabwe's requests for the continued stay of the enforcement of the awards, lifted the provisional stays and ordered that any funds and any documents establishing title to the claimed properties be placed in escrow until the conclusion of the annulment proceedings. The hearing on annulment was held from 3 to 5 April 2018.
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,51 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. On 12 and 13 September 2017, the ad hoc committee held a hearing on annulment. On 19 February 2018, the proposal for disqualification of one ad hoc committee member was declined by the other two members of the ad hoc committee. The proceeding was resumed pursuant to ICSID Arbitration Rules 53 and 9 (6).
In the ICSID arbitration Koch Minerals Sàrl and Koch Nitrogen International Sàrl v. Bolivarian Republic of Venezuela52 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.
In the ICSID arbitration Alpiq AG v. Romania53 concerning electricity generation and distributions operations, the respondent's proposal for the disqualification of one arbitrator was declined by the co-arbitrators. A hearing on jurisdiction and merits was held from 27 June to 1 July 2017. The arbitral tribunal issued its Procedural Order No. 6 concerning provisional measures and the ancillary claim filed by claimant. On 27 February 2018, the tribunal decided on respondent's request on the admissibility of new evidence.
In the ICSID arbitration OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v. Kingdom of Spain,54 the claimants submitted a claim regarding a renewable energy generation enterprise under the Energy Charter Treaty. On 9 March 2018, the respondent filed a rejoinder on the merits and a reply on jurisdiction.
In the ICSID arbitration Glencore International AG and CI Prodeco SA v. Republic of Columbia,55 the claimants asserted 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 2 April 2018, the respondent filed a rejoinder on the merits and a reply on jurisdiction, and on 24 April 2018, the tribunal issued its Procedural Order No. 4 concerning the production of documents.
In the ICSID arbitration Pawlowski AG and Project Sever sro v. Czech Republic56 concerning a real estate development, the tribunal issued its Procedural Order No. 1 concerning procedural matters on 13 February 2018.
The ICSID arbitration Mabco Constructions SA v. Republic of Kosovo57 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. As of 12 March 2018, the proceeding was stayed for non-payment of the required advances pursuant to ICSID Administrative and Financial Regulation 14(3)(d).
In the ICSID arbitration DCM Energy GmbH & Co. Solar 1 KG and others v. Kingdom of Spain58 with four German claimants and one Swiss claimant concerning a renewable energy generation enterprise in Spain filed under the Energy Charter Treaty, the tribunal has yet to be constituted, with the two arbitrators appointed by the parties having accepted their appointments.
III OUTLOOK AND CONCLUSIONS
The revised Swiss Rules 2012 continue to be very well received. More than 1,000 cases have now been conducted under the Swiss Rules with their successful system of a 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 25 years of its existence, has only seen one change in response to a decision of the Federal Supreme Court59 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.
1 Martin Wiebecke is a job title at Anwaltsbüro Wiebecke.
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 D Roth, 'Challenges of Swiss Arbitral Awards – Selected Statistical Data as of 2013', 32 ASA Bulletin 3/2014, p. 460 (465).
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.
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 Decision 4A_532/2016 of 30 May 2017.
38 Decision 4A_98/2017 of 20 July 2017.
39 Decision 4A_277/2017 of 28 August 2017.
40 Decision 4A_53/2018 of 17 October 2017.
41 See Section I.iii supra, before footnote 18.
42 See Section I.iii supra, before footnote 20.
43 Decision 4A_56/2017 of 11 January 2018.
44 Decision 4A_260/2017 of 20 February 2018.
45 Decision of 27 May 2003, DTF 129 III 445.
46 Decision 4A_600/2016 of 29 June 2017.
47 See I.ii, above.
48 Decision 4A_157/2017 of 14 December 2017.
49 ICSID Case No. ARB/10/15.
50 ICSID Case No. ARB/10/25.
51 ICSID Case No. ARB/10/19.
52 ICSID Case No. ARB/11/19.
53 ICSID CASE No. ARB/14/28.
54 ICSID Case No. ARB/15/36.
55 ICSID Case No. ARB/16/6.
56 ICSID Case No. Arb/17/11.
57 ICSID Case No. Arb/17/25.
58 ICSID Case No. Arb/17/41.
59 See Section I.iii, above.