1. A. SA, 2. B. SA, 3. C., 4. D. AG, 5. E. AG, 6. F. AG, 7. G. AG, 8. H. AG, 9. I. AG, 10. J. LLC and 11. K. LLC v. 1. L. and [The Arbitrators’ Decision on Their Own Fees] BGE/ATF 136 III 597, Nos. 4A_391/2010, 4A_399/2010 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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24 pages

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Published: 

November, 2013

Practice Areas: 

Court Decisions

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Originally from: 

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

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No. 44

1. A. SA, 2. B. SA, 3. C., 4. D. AG, 5. E. AG, 6. F. AG, 7. G. AG,

8. H. AG, 9. I. AG, 10. J. LLC and 11. K. LLC v. 1. L. and

2. M. LLC

[The Arbitrators’ Decision on Their Own Fees]

BGE/ATF 136 III 597, Nos. 4A_391/2010, 4A_399/2010

Headnote

■ A decision by an arbitrator as to the advance on costs to be paid

by the parties is in the nature of a procedural order and it cannot, as

such, be challenged before the Federal Supreme Court (confirmation

of previous decisions).

■ The arbitrator’s jurisdiction is limited to the subject matter of the

dispute which the parties have submitted to him; it does not extend

to the relationship between the parties and the arbitrator.

■ Therefore, the decision by the arbitrator on his costs is not

binding on the parties; disputes between the parties and the

arbitrator regarding the remuneration of the arbitrator shall

accordingly be brought before the courts of law (obiter).

Summary of the Decision

L. and M. LLC were the claimants in a Swiss Rules arbitration

administered by the Zurich Chamber of Commerce and had sued sixteen

respondents. All respondents in the arbitration challenged arbitral

jurisdiction. At the time, the arbitral tribunal had not been constituted.

The Zurich Chamber of Commerce ruled that the decision on jurisdiction

should be left to the arbitral tribunal to be constituted, and a tribunal was

then constituted. Ultimately, the arbitrators stayed the proceedings

temporarily as the advance on cost was not paid in time and they ruled

that the proceedings would be resumed on the condition that the advance

on costs be paid by claimants and respondents in equal shares. This

condition was not met. In an “Interim award”, the arbitrators declared

that the proceedings would be stayed pending payment of the costs and

fees accrued so far and that the parties were jointly and severally liable to

the arbitrators for the payment of their fees and costs. The arbitrators

stated that they did not in any way address and decide upon the claims

and requests of the parties “beyond the framework of the present partial

award.” In the reasons for its “Interim award” the tribunal found that the

arbitrators were entitled to the payment of fees and costs according to the

contract between them and the parties (receptum arbitri).