The International Arbitration Review: Switzerland
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 19 June 2020, the two Chambers of the Swiss Parliament unanimously adopted the revision of the 12th Chapter. The revised Act entered into force on 1 January 2021.3 On 1 January 2011, the 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.4
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 an 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 arbitral tribunals that have their seat in Switzerland if, at the time of the conclusion of the arbitration agreement, at least one of the parties thereto did not have its domicile, its habitual residence or its seat in Switzerland.5 The parties may, however, agree in the arbitration agreement or in a subsequent agreement that the provisions of Chapter 12 are excluded and that Part 3 of the CCP should apply.6 The seat of the arbitral tribunal is determined by the parties or the arbitral institution designated by them, or, failing both, by the arbitral tribunal.7
Pursuant to Article 177(1) of the PILA, any dispute of economic 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 any other means of communication allowing 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, as regards its substance, 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. Article 178(3) of the PILA expressly stresses the autonomy of the arbitration clause in line with the separability principle. Finally, Article 178(4) of the PILA declares the provisions of Chapter 12 to apply by analogy to an arbitration clause in a unilateral transaction or in articles of association.
With regard to the constitution of the arbitral tribunal, party autonomy is guaranteed. Article 179 of the PILA contains detailed provisions on the appointment and replacement of the members of the arbitral tribunal which, unless it is agreed otherwise, shall comprise three members. In the absence of an agreement, the state court at the seat of the arbitral tribunal may be seized. If the parties have not agreed on a seat or only agreed that the seat of the arbitral tribunal be in Switzerland, the first state court seized has jurisdiction. A state court shall make such appointment unless a summary examination shows that no arbitration agreement exists between the parties. In the case of a multiple-party dispute, the state court may appoint all the members of the arbitral tribunal. A person asked to become an arbitrator shall without delay disclose the existence of circumstances that could give rise to legitimate doubt as to his or her independence or impartiality. This obligation applies throughout the entire proceedings.
An arbitrator may be challenged (1) if he or she does not meet the qualifications agreed upon by the parties; (2) if a ground for challenge exists under the rules of arbitration agreed upon by the parties; or (3) if circumstances exist that give rise to legitimate doubt as to his or her independence or impartiality. 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 A party that continues with the arbitration proceedings without objecting immediately to a breach of the rules of procedure of which it is aware or which it would have been aware had it exercised due diligence may not evoke this breach at a later point in the proceedings.10
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 competent court, who will apply its own law.11
The arbitral tribunal takes the evidence itself. 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 arbitral tribunal (or a party with the consent of the arbitral tribunal) may request state legal assistance at the state court at the seat of the arbitral tribunal, who will apply its own law.13 On request, a state court may apply or take account of other forms of procedure.14 The state court also has jurisdiction for any other assistance required by a state court.15 Further, an arbitral tribunal with a seat abroad or a party to foreign arbitration proceedings may request the state court at the place where the interim or conservatory measure is to be executed to participate. Both may also request the state court where evidence is to be taken to participate (the party only with consent of the arbitral tribunal).16
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 Court17 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.18 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.19
As for the determination of the law applicable to the merits of a 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.20
Article 189(a) of the PILA provides for the correcting, explaining and supplementing of the award.
Article 190(2) of the PILA lists the exclusive and very limited grounds for an action for the 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.21 This is the only appeal authority and thus instance to decide set-aside actions. The median duration for setting aside proceedings is slightly more than five months (160 days).22 An action for annulment does not have any suspensive effect unless a specific application to this end has been granted by the Supreme Court.
A party may request a review of an award ('revision') if: (1) significant facts or undiscovered decisive evidence which it could not have produced in the earlier proceedings despite exercising due diligence (not facts or evidence that came into existence after the award); (2) criminal proceedings have established that the arbitral award was influenced to the detriment of the party concerned by a felony or misdemeanour (even without a conviction); (3) a ground for a challenge of an arbitrator based on legitimate doubt as to his or her independence or impartiality only came to light after conclusion of the arbitration proceedings despite exercising due diligence. Such a request must be filed within 90 days of the grounds for review coming to light and in any case before the lapse of 10 years after the award became legally binding (except in the case of criminal proceedings).
If none of the parties has their domicile, habitual residence or seat in Switzerland, they may, by a declaration in the arbitration agreement or by subsequent agreement, wholly or partly exclude all appeals against arbitral awards. They may limit such proceedings to one or several of the aforementioned annulment grounds. The right to a review for the reason of a criminal proceeding may not be waived.23 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.24
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 1965.25 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 2012.26 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 (SCAI). 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.27 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.28
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.29 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;30 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.31
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.32
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 negotiation, conclusion or 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. The Swiss Federal Supreme Court already held in 2003 that the form requirements under Article 178(1) of the PILA need to be met only by the original parties to the arbitration agreement and not by third parties who join at a later stage of the contract execution.33 In 2019, the Supreme Court confirmed that this view also applies to the form requirements under Article II (2) of the New York Convention.34
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.35 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,36 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 a 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.37 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,38 the equal treatment of the parties and the right to be heard,39 and certain provisions concerning the organisation of the arbitral proceedings by the court.
In its Guidelines for Arbitrators, effective 1 January 2020, the court summed up its practice on administrative secretaries, conduct of the proceedings, 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.40
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.41
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 348 arbitrators from 85 countries with specialist knowledge of arbitration and sports law. Of these arbitrators, 105 are also on a separate football list. Further, there are 45 arbitrators on the list of the CAS Anti-Doping Division (CAS ADD).
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 July 2020, 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 2021 and the Legal Aid Guidelines of 2020. The consultation procedure that allowed sports organisations to request an advisory opinion from the CAS, rarely used in the past, was abrogated in 2012. New CAS Emergency Guidelines have been in force since 16 March 2020, already modified on 15 May 2020, to cope with the covid-19 situation.
It is CAS policy to update its Code of Sports-related Arbitration regularly to address the demands of modern arbitration procedures. CAS amended its Code of Sports-related Arbitration effective as from 1 July 2020 to take into account technical innovations such as the use of electronic filing and video-conferencing. Also, Spanish has now been introduced as the third official working language, along with French and English. 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 National Olympic Committees (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 58 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, 2019 and 2020, 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.42 The cases filed include not only contractual disputes, such as patent and software licences, trademark coexistence agreements, and research and development agreements, but also noncontractual 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. The Center has had an office in Singapore since 2010.
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 its four sets of rules. The 2020 WIPO Arbitration Rules and the 2020 WIPO 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 allow the Center to 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, a preparatory conference is a mandatory stage of the arbitration proceedings; it has to be convened within 30 days after the establishment of the arbitral tribunal. Both sets of rules provide for an emergency relief procedure before the establishment of a tribunal, but they do 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. The Expert Determination Rules were updated as per 1 January 2016, and the WIPO Mediation Rules per 1 January 2020.
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.
WIPO provides WIPO Online Case Administration Tools. To this end, it has issued a 'WIPO Checklist for the Online Conduct of Mediation and Arbitration Proceedings'.
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 76 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 2019 International Chamber of Commerce (ICC) statistical report shows that Switzerland was the third most commonly chosen place of arbitration (84 arbitrations: 53 in Geneva, 27 in Zurich, two in Lugano, one in Lausanne, one in Winterthur), and that 9.96 per cent of the arbitrators were from Switzerland. Regarding the parties, 43 claimants and 24 respondents were from Switzerland, accounting for 2.68 per cent of the total number of parties in ICC arbitrations.
In 2020, 83 new arbitration cases and four new mediation cases were submitted to the SCAI. Of the 2020 arbitration cases, 180 parties were involved in total from 41 different countries. Regarding the parties, 77 per cent were from Europe (including 39 per cent from Switzerland), 9 per cent from Asia and the Middle East, 3 per cent from North America and 5 per cent from other countries. Of the new arbitrations, 64 per cent were held in English, 13 per cent in German, 12 per cent in French, 8 per cent in Italian and 3 per cent in another language or yet to be determined. As for the seat of the arbitration, 45 per cent of the arbitrations were conducted in Zurich, 28 per cent in Geneva, 14 per cent in Lugano, 5 per cent in Basle and 5 per cent in other Swiss cities. Three per cent of the arbitrations had a seat outside Switzerland, or were undetermined, in 2020. Of the arbitrations, 47 per cent were conducted before a panel of three arbitrators and 53 per cent before a sole arbitrator; 54 per cent were normal procedures; 39 per cent were expedited; in 2 per cent of the arbitrations, the SCAI was asked to be the appointing and fund-holding authority; and 4 per cent were not (yet) determined. There were two emergency relief requests under the Swiss Rules in 2020.
In 2020, 957 new cases were submitted to the CAS: 129 ordinary procedures, 811 appeal procedures, and eight anti-doping procedures (no ad hoc procedures). Nine mediation procedures were held.
Up to 1 January 2021, the WIPO Center has administered over 750 mediation, arbitration and expert determination cases. Of its mediation and arbitration cases, 29 per cent concerned patents, 21 per cent trademark, 18 per cent information and communication technology (ICT) law, 16 per cent copyright matters, and 16 per cent commercial disputes. 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 and 2 per cent in chemistry areas, while 21 per cent were in other areas (data for 2017). Of the mediation and (expedited) arbitration cases filed with the WIPO Center, some 30 per cent included an escalation clause providing for WIPO mediation followed by WIPO (expedited) arbitration. In the arbitration cases, the settlement rate was 33 per cent, and in the mediation cases 70 per cent (in 2020: 78 per cent).
The WIPO Center assisted parties in over 650 good offices requests.
The WIPO Center has administered some 50,000 cases under the UDRP and related policies, having involved parties from 180 countries and some 90,000 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.
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.43
The year in review
i Developments affecting international arbitration
As mentioned above, the revised Chapter 12 of the PILA entered into force on 1 January 2021. It was a light revision rather than a comprehensive overhaul. Some case law of the Swiss Federal Supreme Court on procedural issues was codified. The moderate amendments are taken into account in Section I.iii. Last year, there were no changes to the Swiss Rules of 2012.
ii Arbitration developments in local courts
In the past year, the Swiss Federal Supreme Court rendered more than 50 decisions in set-aside proceedings.
As every year, the Swiss Federal Supreme Court had to deal with a number of cases with issues of jurisdiction, such as Kompetenz-Kompetenz, objective and subjective scope of the arbitration clause and the extension of the arbitration clause to third parties.
In a decision of 2 November 2020,44 the Swiss Federal Supreme Court reconfirmed the principle of 'Kompetenz-Kompetenz' which provides that the arbitral tribunal itself decides on its own jurisdiction (cf. Article 186(1) of the PILA). This applies even when the state court was seized before the arbitral tribunal, subject to substantial grounds to the contrary (Article 186(1 bis) of the PILA). In this case, however, the arbitral tribunal did not even have to resort to these provisions of the PILA because of the chronological priority of the arbitral proceedings. A Turkish construction company had settled claims arising from a construction agreement with its contract partner, the state of Libya, in a settlement agreement. Libya failed to comply therewith. The Turkish company introduced ICC arbitration proceedings in Geneva based on the Turkish-Libyan Investment Protection Agreement. Only thereafter Libya initiated proceedings before the local court in Tripoli to contest the validity of the settlement agreement. The Tripoli Court having found that the settlement agreement is invalid and void, the State of Libya then filed an appeal against the award which the Supreme Court rejected.
In a decision of 18 May 2020,45 the Swiss Federal Supreme Court confirmed again its long-standing practice as regards the parties' intent when concluding an arbitration agreement. Any determinations by an arbitral tribunal relating to the parties' actual and common intent are factual findings and therefore not subject to review by the Supreme Court on this basis ('subjective interpretatio'). However, if the arbitral tribunal had not relied on the parties' actual and common intent, but on the parties' presumed intent ('objective interpretation'), this is a question of law and thus can be fully reviewed by the Supreme Court. The dispute brought to the Supreme Court was based on a trilateral agreement for the construction of a housing project in Iran which contained an arbitration clause mirroring the dispute resolution clause in Article 11 of the 1996 BIT between Turkey and Iran which referred to UNCITRAL arbitration. Following various disagreements, a Turkish company and an Iranian company that had assumed the Turkish company's obligations under the trilateral agreement together introduced arbitration proceedings against the Iranian state company and the Iranian state bank, the two other parties to the trilateral agreement. The arbitral tribunal seated in Geneva had found the arbitration clause not to be pathological by itself but that it was not compatible with the trilateral agreement's wording. Nor did the arbitration clause have any connection with the trilateral agreement. It did not refer to the parties of or to disputes arising out of the trilateral agreement. Finally, during the contract negotiations of the trilateral agreement, the parties had not agreed to refer potential disputes to international arbitration outside Iran or Turkey. The respondents' objection on this issue had even been expressly recognised by the other side. Thus, the arbitral tribunal had correctly denied its jurisdiction. The Supreme Court was bound by such factual findings and had to reject the challenge.
In a decision of 6 January 2020,46 the Supreme Court had to deal with the objective scope of an arbitration agreement. A South Korean company and a German company had negotiated three contracts: a corporate agreement, the terms of purchase and also a quality assurance agreement (QAA). They finally signed only the QAA that contained an arbitration clause for 'contract disputes' to be resolved by ICC arbitration in Zurich. Following a dispute, the German company introduced an arbitration for claims which did not arise from the QAA. In a partial award, the arbitral tribunal declared that it had jurisdiction based on the arbitration clause in the QAA. The Supreme Court rejected the South Korean company's challenge that the arbitral tribunal had incorrectly admitted its jurisdiction. The Supreme Court reiterated its established practice that an arbitration agreement has to be interpreted according to the general principles of contract interpretation. Once an arbitral tribunal has found that the parties have agreed on arbitration, there is no basis for a narrow interpretation of the arbitration agreement. The arbitration clause in the QAA thus had to apply to the entire contractual relationship of the parties. This was rather a question of good faith than one of extending the arbitration clause to other independent contracts.
In a decision of 17 April 2020,47 the Swiss Federal Supreme Court drew once more the attention to the difference between the question of a claimant or respondent being a party to the arbitration agreement, thus the jurisdiction of the arbitral tribunal, and the issue of a party's standing to sue or to be sued, which is a matter of substance of the claim. The case arose out of an exclusive licence agreement to establish and operate seafood bars in airports and train stations. The licensor had also authorised the licensee to grant sub-licences to its subsidiaries in a contractual clause conferring rights to sub-licensees under Article 112 of the Code of Obligations (contract for the benefit of a third person). The licensee then sub-licensed certain rights to its subsidiary. The licensor objected in the arbitration proceedings that some damage heads claimed by the licensee arose from the sub-licence agreement to which it was not a party. The Supreme Court held that these questions were of a substantive nature and not of a jurisdictional character, confirmed the jurisdiction of the arbitral tribunal and rejected the appeal.
Right to be heard
The ethics council of the Turkish football association TFF had denied a request by the Turkish football club Trabzonspor that, following the match-fixing of 19 matches by its rival football club Fenerbahce, Trabzonspor should be awarded the title of champion in the national league at the end of the season 2010/2011. TFF argued that it was not the football club itself, but only some officials being involved in the scandal. Trabzonspor then turned to UEFA und FIFA but both denied jurisdiction because it concerned a national championship. Trabzonspor filed an arbitration with the CAS against the decision of the TFF. The CAS found that Trabzonspor has no legal standing in the proceedings. Further, it rejected a request of Trabzonspor for a public hearing. It was this last point that Trabzonspor challenged before the Swiss Federal Supreme Court who rendered its decision on 17 August 2020.48
Trabzonspor alleged that the Arbitral Tribunal had violated its right to be heard and also the right of a public procedure under Article 6(1) of the European Convention on Human Rights (ECHR). The Supreme Court rejected the appeal. A breach of any provision of the ECHR is not listed in Article 190, paragraph 2, PILA which lists exhaustively the grounds for an appeal. Nor would a breach of the ECHR necessarily constitute a breach of public policy.
Further, the Supreme Court also found no breach of the principle of good faith according to Article 2 of the Swiss Civil Code by TFF when not deducting points in the table of the national league for Fenerbahce as a sanction. This would not constitute a breach of public policy as not every breach of good faith qualifies as such. In any case, the (not public) hearing was a preliminary hearing addressing only purely legal and technical matters. The underlying facts were not in dispute. Finally, the arbitrators had expressly discussed in their decision the preliminary character of the hearing, being without prejudice to the merits of the case and a further hearing.
Scope of res judicata
In a decision of 16 March 2020,49 the Swiss Federal Supreme Court had to address the scope of res judicata. It confirmed its practice that the substantive effects of the res judicata are restricted to the dispositive part of an arbitral award. The reasoning of the arbitral tribunal in its award is not binding on a subsequent arbitral tribunal. The tribunal's reasoning can only be consulted to interpret the scope of the operative part, in particular if it is only stated that a claim is dismissed, but it is not binding, even if the subsequent arbitral tribunal has to adjudicate the same preliminary questions.
In a first arbitration against a football club, a footballer's agent claimed the payment of a fee and in addition requested a declaratory judgment that he was entitled to a payment of an additional remuneration. The first arbitral tribunal had denied the agent's request for a declaratory judgment. In the second arbitration, the agent requested the payment of the additional remuneration from the club, which was granted by the second arbitral tribunal. In its appeal, the club argued that the second award was a violation of the binding effect of res judicata and thus of procedural public policy.
The Supreme Court dismissed the appeal. It held that res judicata fully applies to a new procedure between the same parties on an identical claim having been adjudicated in a final decision. The first tribunal having rejected the agent's request for declaratory relief as inadmissible, such decision does not prevent a new claim for the payment. The binding effect was restricted to the question of admissibility as discussed by the first arbitral tribunal in its reasoning and dismissed in the operative part of its award.
In the case of the South African athlete Caster Semenya, the Swiss Federal Supreme Court once more confirmed its jurisprudence regarding violations of public policy. In a decision of 25 August 2020,50 the Supreme Court held that it was bound by the facts as established by the CAS. Its own examination would be restricted to the question whether the decision of the CAS would violate public policy. The Supreme Court found no violation of public policy as the CAS pursued a legitimate interest in protecting the fairness of the competition, also in view of the interest of other athletes. The core of the right of integrity of the human body was not significantly affected and the CAS had not in any manner put into question the sex of the athlete. The differentiation drawn by the CAS such that the integrity of the female competitors has to be protected was not against public policy.
Duty of curiosity when investigating an arbitrator's possible bias
In a decision of 22 December 2020,51 the Swiss Federal Supreme Court examined the necessary extent of screening of social media to ascertain a possible bias of an arbitrator. The case arose from a revision of an CAS award in which the Chinese professional swimmer Sun Yang sought the annulment of the award and disqualification of the presiding arbitrator. He argued that only after the rendering of the award he had discovered on a website that the presiding arbitrator had made disparaging comments on his twitter account about Chinese nationals. These comments could draw into doubt the arbitrator's impartiality in a case involving a Chinese athlete.
The Supreme Court followed the arguments of the Chinese athlete and vacated the award. In its extensive reasoning, the Supreme Court first noted that a party has a duty to conduct searches in relation to an arbitrator's independence and impartiality. However, this duty has its limits. The party is not required to carry out extensive investigations in the absence of any indications of bias. Nor does a party have to continue its investigations during the arbitration proceeding itself. The 'duty of curiosity' as to the existence of possible grounds of challenge of an arbitrator has limits. The circumstances of the individual case are decisive. In this case, the applicant had not breached his duty of curiosity.
Turning to the facts of the case itself, the Supreme Court found that a disqualification of the arbitrator was warranted, also with reference to the decision of the ECHR in the matter Mutu v. Switzerland. There it was held that the mere appearance of bias is sufficient to disqualify an arbitrator. The specific circumstances of each case are decisive. Here the Supreme Court found the doubts justified. There are limits to the expression of arbitrators in social networks, even if they do not act there as an arbitrator, to avoid doubts as to their impartiality. While the arbitrator's remarks were made in another context, he had also used disparaging words which had no context with the subject and were as such inadmissible. Further, the presiding arbitrator had also continued to utter such remarks after his appointment as president of the arbitral tribunal. The doubts were justified.
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).
While, in particular, ad hoc investment treaty arbitrations are regularly seated in Switzerland, the Swiss Federal Supreme Court needs to decide every year only a very limited number of annulment actions against such awards. Last year, the Supreme Court for the first time partially annulled an investment arbitration award rendered in Switzerland.
Swiss Federal Supreme Court annuls for the first time an investment arbitration award
In a decision of 25 March 2020,52 the Swiss Federal Supreme Court – for the first time – partially annulled an arbitral award issued in an investment arbitration seated in Switzerland. It found that an arbitral tribunal seated was wrong in declining jurisdiction for an investment treaty claim brought by Clorox España SL against the República Bolivariana de Venezuela in an UNCITRAL arbitration in Geneva. The decision considered only one jurisdictional objection dealt with by the arbitral tribunal, while others still have to be adjudicated by the tribunal. The Supreme Court continued its practice to interpret the meaning of the terms 'investor' and 'investment' in line with the Vienna Convention on the Law of Treaties (i.e., in this case based on the wording of the BIT even though Venezuela has not ratified that Convention). The Supreme Court noted that the definition of the term 'investment' in the BIT entered between Spain and Venezuela, based on which Clorox sought damages for Venezuela's alleged violation of Clorox rights as investor, did not provide for any limitation or requirement regarding the type of protected investment. Rather, the contracting parties had provided themselves for a brought definition of that term. Even though at the time of the conclusion of the BIT, defensive measures against 'treaty shopping' practice had already been commonly provided for by adding additional requirements, this BIT contained no requirement going further than an investor holding assets in the territory of the other contracting party. The Supreme Court therefore found that the arbitral tribunal had without cause put up additional requirements (which were allegedly not met). Accordingly, Clorox's request to annul the award was granted. However, the other jurisdictional objections of Venezuela still have to be adjudicated upon by the arbitral tribunal.
Another challenge of an award in an investment dispute was dismissed by the Swiss Federal Supreme Court. In a decision of 7 February 2020,53 the Supreme Court held that the submission of new legal arguments is in principle admissible in proceedings before it, unlike that of new facts and evidence. An applicant may also file a judgment related to the case. Arbitral award and foreign court decisions are admissible only if they were rendered before the date of the issuance of the challenged award. However, investment treaty awards do not have any binding effect on tribunals in subsequent investment treaty arbitrations. Thus, the appellant Czech Republic was not allowed to rely on the Achmea decision of the European Court of Justice,54 nor on the Antaris Solar award by the PCA,55 both having been rendered after the award. The Supreme Court thus rejected the Czech Republic's interim challenge limited to the tribunal's findings on jurisdictions. The tribunal's decision that the state is liable for reforms to its solar power sector cannot be challenged at this juncture but only together with the tribunal's forthcoming decision on the damages. The arbitration is now in the damages phase.
Switzerland facing its first ICSID claim
On 17 August 2020, ICSID registered an arbitration by Human Rights Defenders Inc., as assignee of Natale Palazzo, Rodolfo Scodeller and Antonio Basile against the Swiss Confederation.56
The Seychelles entity claims US$300 million as assignee of three Italian investors whose properties were allegedly devalued by measures of the Swiss authorities back in the late 1980s. The claim has been filed under the Swiss–Hungarian BIT. The claimants argue that they are entitled to rely on the dispute resolution provisions of the Swiss–Hungarian BIT pursuant to a most-favoured nation clause in a 1868 treaty on consular relations between Switzerland and Italy. A 1989 Swiss Federal decree which aimed at limiting real estate speculation imposed a retroactive ban on the sale of property within five years of its purchase. The claimants argue that this was in contravention of a 1988 referendum.
The arbitral tribunal was constituted on 13 January 2021. On 29 January 2021, the respondent filed preliminary objections pursuant to ICSID Arbitration Rule 41(5). On 12 March 2021, the Secretary-General moved that tribunal stay the proceedings pursuant to ICSID Administrative and Financial Regulation 14(3)(d). Pursuant to this provision, on 22 March 2021 the tribunal issued its Procedural Order No. 1 staying the proceedings for non-payment of the required advances.
Cases involving Swiss parties pending in ICSID proceedings
In the ICSID arbitration of Koch Minerals Sàrl and Koch Nitrogen International Sàrl v. Bolivarian Republic of Venezuela57 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. After a stay of the annulment proceedings, initiated by Venezuela on 17 August 2016, the ad hoc committee issued three procedural orders. On 20 November 2020, Venezuela filed a memorial on annulment. On 5 April 2021, the claimants filed their counter-memorial on annulment.
In the ICSID arbitration Alpiq AG v. Romania58 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. On 23 July 2019, Alpiq AG filed an application for partial annulment. The parties filed a double exchange of memorials on annulments and a double exchange of post-hearing briefs, with the reply post-hearing briefs and submissions of costs filed on 15 February 2021.
In the ICSID arbitration OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v. Kingdom of Spain59 regarding a renewable energy generation enterprise under the Energy Charter Treaty, the tribunal rendered its award on 6 September 2019 (with a dissenting opinion by one arbitrator) and a rectification of the award on 28 October 2019. The tribunal ordered Spain to pay about €30 million to the Maltese and Swiss investors. On 29 March 2021, Spain filed its reply on annulment.
In the ICSID arbitration Glencore International AG and CI Prodeco SA v. Republic of Columbia,60 the claimants asserted that the Columbian authorities had sought to revoke an amendment to a concession agreement after it was signed, and after significant investments had been made to expand the Calenturitas thermal coal mine on the basis of the amendment. On 27 August 2019, the tribunal rendered its award. Colombia was ordered to pay a US$19 million as restitution of a fine. The tribunal dismissed most of Columbia's jurisdiction and admissibility objections, and also alternative claims by Glencore for US$575 million plus interest under the previous royalty regime, whose reinstatement the tribunal rejected. On 30 December 2019, Columbia filed an application for annulment. On 6 November 2020, the ad hoc committee held a hearing on annulment by video-conference. On 24 November 2020, each party filed a statement of costs.
In the ICSID arbitration Pawlowski AG and Project Sever sro v. Czech Republic61 concerning a real estate development, the tribunal held a hearing on jurisdiction, merits and quantum in Paris in January 2020. On 15 July 2020 and 5 August 2020, the parties filed their post-hearing briefs and statements of costs, respectively.
The ICSID arbitration Mabco Constructions SA v. Republic of Kosovo62 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 23 January 2020, a hearing on jurisdiction was held. In February 2020, the parties filed their post-hearing briefs and submissions on costs. On 30 October 2020, the tribunal issued a decision on jurisdiction with a dissenting opinion by one arbitrator. On 16 April 2020, the claimant filed its memorial on the merits.
In the ICSID arbitration DCM Energy GmbH & Co. Solar 1 KG and others v. Kingdom of Spain,63 four German claimants and one Swiss claimant filed a claim concerning a renewable energy generation enterprise in Spain under the Energy Charter Treaty. After a hearing on jurisdiction and merits held in Paris in February 2020, post-hearing briefs, further comments, observations, responses, supplements and requests for the tribunal to decide on the admissibility of new documents were filed. On 6 April 2021, the tribunal decided on the admissibility of new documents.
In the ICSID arbitration EBL (Genossenschaft Elektra Baselland) and Tubo Sol PE2 SL v. Kingdom of Spain64 regarding a renewable energy generation enterprise in Spain filed under the Energy Charter Treaty, the exchanges on jurisdiction were completed. In October and November 2020, the organisation of the hearing was prepared by a pre-hearing organisational meeting and two procedural orders of the tribunal.
The ICSID arbitration Glencore International AG, CI Prodeco SA and Sociedad Portuaria Puerto Nuevo SA v. Republic of Columbia65 concerns a dispute about the construction and maintenance of an access channel for the public service port, Puerto Novo, in Ciénaga on Colombia's northern coast. Note that it is unrelated to ICSID Case No. ARB/16/6 discussed above. On 22 February 2021, the tribunal issued a decision on the respondent's preliminary objections pursuant to ICSID Arbitration Rule 41 (5).
In the ICSID arbitration United Agencies Limited SA v. People's Democratic Republic of Algeria66 concerning a dispute about the acquisition of shares, the claimant filed several observations on respondent's request to address the objection to jurisdiction as a preliminary question. A Procedural Order No. 2 addressed this request. Further procedural orders addressed procedural matters, provisional measures and the production of documents, the last of them dated 3 May 2021.
In the ICSID arbitration, Philip Morris International Inc. and others v. Ukraine67 concerning a dispute in the tobacco industry, the tribunal was constituted on 27 April 2021.
In the ICSID arbitration APG SGA SA and D.O.O. za promet i usluge Alma Quattro Beograd v. Republic of Serbia68 concerning a dispute in the advertising industry, the Secretary-General registered a request for the institution of arbitration proceedings on 17 March 2021.
Outlook and conclusions
The revised Swiss Rules 2012 continue to be very well received. More than 1,300 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. Chapter 12 of the PILA, after the 30 years of its existence, now underwent a light revision that entered into force on 1 January 2021. It incorporated some of the case law of the Swiss Federal Supreme Court and some details considered by the legislator to be preferably codified in the lex arbitri itself.
1 Martin Wiebecke is an attorney at law at Anwaltsbüro Wiebecke.
3 These changes are integrated into Section I.iii.
5 PILA, Article 176(1).
6 PILA, Article 176(2).
7 PILA, Article 176(3).
8 PILA, Article 180.
9 PILA, Article 182(3).
10 PILA, Article 182(4).
11 PILA, Article 183(1) and (2).
12 For example, if written witness statements are filed, there will be only a short direct examination of the witnesses.
13 PILA, Article 184.
14 PILA, Article 184(3).
15 PILA, Article 185.
16 PILA, Article 185(a).
17 DFT 127 III 279 of 14 May 2001.
18 PILA, Article 186(1 bis).
19 PILA, Article 186(2) and (3).
20 PILA, Articles 188 and 189.
21 PILA, Article 190(4).
22 F Dasser and P Wójtowicz, Swiss International Arbitral Awards before the Federal Supreme Court – Statistical Data 1989-2019, 39 ASA Bulletin 1/2021, p. 7 (21).
23 PILA, Article 192(1).
24 See, for example, decision 4A_53/2017 of 17 October 2017.
25 PILA, Article 194.
27 Swiss Rules, Article 1(4).
28 Swiss Rules, Article 40(4).
29 Swiss Rules, Article 1(1).
30 Swiss Rules, Article 1(3).
31 Swiss Rules, Article 1(2).
32 Swiss Rules, Article 33(1).
33 Decision 4P_115/2003 of 16 October 2003.
34 Decision 4A_646/2018 of 17 April 2019.
35 Swiss Rules, Article 15(8).
36 Swiss Rules, Article 26.
37 Swiss Rules, Article 43.
38 Swiss Rules, Article 9.
39 Swiss Rules, Article 15(1).
44 Decision 4A_461/2019 of 2 November 2020.
45 Decision 4A_418/2019 of 18 May 2020.
46 Decision 4A_342/2019 of 6 January 2020.
47 Decision 4A_12/2019 of 17 April 2020.
48 Decision 4A_486/2019 of 17 August 2020.
49 Decision 4A_536/2018 of 16 March 2020.
50 Decision 4A_398/2019 of 25 August 2020.
51 Decision 4A_318/2020 of 22 December 2020.
52 Decision 4A_306/2019 of 25 March 2020.
53 Decision 4A_80/2018 of 7 February 2020.
54 ECJ Case-C284/16 of 6 March 2018.
55 PCA Case No. 2014-01.
56 ICSID Case No. ARB/20/29.
57 ICSID Case No. ARB/11/19.
58 ICSID Case No. ARB/14/28.
59 ICSID Case No. ARB/15/36.
60 ICSID Case No. ARB/16/6.
61 ICSID Case No. ARB/17/11.
62 ICSID Case No. ARB/17/25.
63 ICSID Case No. ARB/17/41.
64 ICSID Case No. ARB/18/42.
65 ICSID Case No. ARB/19/22.
66 ICSID Case No. ARB/20/1.
67 ICSID Case No. ARB/21/3.
68 ICSID Case No. ARB/21/13.