1. ISC Holding AG, 2. X. Management SA, 3. A. and 4. B. v. Nobel Biocare Investments NV [The Nobel Investments] No. 4A_279/2010 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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November, 2013

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Originally from: 

Swiss International Arbitration Law Reports 2010 Vol. 4 Nos. 1 and 2

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No. 39

1. ISC Holding AG, 2. X. Management SA, 3. A. and 4. B. v.

Nobel Biocare Investments NV

[The Nobel Investments]

No. 4A_279/2010

Headnote

■ Where a party raises the existence of an arbitration agreement as

an objection to the jurisdiction of a Swiss court, the court shall have

no jurisdiction and must refer the parties to arbitration provided

that the requirements of article II(3) of the New York Convention

are met (confirmation of previous decisions).

■ Whether the parties have made an arbitration agreement at all

and, if so, on which terms, is a matter of interpretation and

construction of the arbitration clause. The existence of the parties’

mutual intention to waive court proceedings must not be accepted

lightly. Where such intention is in dispute, a restrictive approach to

interpretation is appropriate (confirmation of previous decisions).

■ A clause providing that “the parties agree in advance to have the

dispute submitted to binding arbitration through The American

Arbitration Association or to any other US court” does not express

the parties’ clear and unambiguous intention to submit all disputes

arising out of their contract to arbitration and to exclude the

jurisdiction of courts of law.

■ Where the parties’ intention to resort to arbitration is not in

dispute or has been determined, an imprecise or inaccurate

designation of the arbitral tribunal does not cause the arbitration

agreement to be null and void, provided that it can be determined

which institutional rules the parties intended to designate (obiter,

confirmation of previous decisions).

Summary of the Decision

Nobel Biocare Investments NV (“Nobel”) invested upon

recommendation of its former treasurer C. in a credit linked note and

paid an amount in excess of USD 1.5 million to X. Management SA as

commission for this transaction. C. subsequently signed an “Asset

Management Facilitation Agreement” (“AMFA”) with ISC Holding AG

(“ISC”) in the name of Nobel. Nobel further invested in two structured

notes and paid USD 1.225 million to X. Management SA as commission

for this transaction.