1. Vivendi S.A., 2. Vivendi Telecom International S.A., 3. Elektrim Telekomunikacja Sp zoo, 4. Carcom Warszawa Sp zoo, 5. Elektrim Autoinvest SA, v. 1. Deutsche Telekom AG, 2. T-Mobile International AG & Co. KG, 3. T-Mobile Deutschland GmbH, 4. T-Mobile Poland Holding No. 1 BV, 5. Polpager Sp zoo, 6. Elektrim SA, 7. Mega Investments Sp zoo, 8. Elektrim Finance BV, 9. Polska Telefonia Cyfrowa Sp zoo [The Bankruptcy of a Polish Party in the Course of an Arbitration in Switzerland] No. 4A_428/2008 - Swiss Inte

Page Count: 

18 pages

Media Description: 

1 PDF Download

Published: 

December, 2009

Practice Areas: 

Court Decisions

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Originally from:
Swiss International Arbitration Law Reports - 2009 Vol. 3 Nos. 1 & 2

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Headnote

 

■ Called upon to review an award subject to a jurisdictional

challenge, the Federal Supreme Court will freely review questions of

law, including all of the preliminary questions of substance on which

arbitral jurisdiction depends (confirmation of previous decisions).

■ Where such preliminary questions are governed by foreign law

the Federal Supreme Court will similarly review the application of

such system of law freely and with unfettered power of review as

part of its decision on a jurisdictional challenge.

■ The capacity of a private party to be a party to an arbitration in

Switzerland is governed by the system of law of the country in which

such private party is incorporated according to articles 154 and

155(c) FPILA. The system of law of the country in which a company

is incorporated, Poland in this case, determines in particular

whether a company in bankruptcy has the capacity to be a party to

an arbitration agreement or to be a party to pending arbitration

proceedings in Switzerland.

 

Summary of the Decision

 

In a multiparty ICC arbitration in Geneva (Switzerland), the arbitrators

made an interlocutory decision with respect to a Polish party (Elektrim

SA) which had been declared bankrupt by the Warsaw Bankruptcy Court

and found that the arbitration had to be discontinued with regard to that

party under article 142 of the Polish Bankruptcy and Reorganisation Act

(PBRA). Such provision discharges any and all arbitration agreements

concluded by a bankrupt debtor and operates so as to bring to an end any

and all arbitration proceedings to which such debtor is a party.