A. GmbH v. B. SA [The Romanian Steel Blooms] No. 4A_550/2009 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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

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No. 9

A. GmbH v. B. SA

[The Romanian Steel Blooms]

No. 4A_550/2009

Headnote

■ Setting aside proceedings are a remedy such that where a

petitioner is successful, the challenged award can only be set aside.

Where a petitioner seeks a decision on the merits from the Federal

Supreme Court, such a prayer for relief is therefore inadmissible as

a rule (confirmation of previous decisions).

■ An arbitrator does not have a duty to discuss each and every

argument made by either party. An award will be set aside due to a

breach of a party’s right to present its case only where the arbitrator

has failed to deal with a point relevant to the decision on the merits

so that the petitioner is in the same position as if it had been denied

any opportunity to present its case on such point (confirmation of

previous decisions).

■ An interlocutory award may be challenged along with the final

award only provided that it has a bearing on such award (art. 93(3)

FSCA).

■ An arbitrator does not breach the parties’ right to put their case

before him by denying a request for the taking of evidence on points

which are not relevant to the decision on the merits (obiter,

confirmation of previous decisions).

Summary of the Decision

B. SA placed orders with A. GmbH for the production and delivery of

steel blooms. An explosion in A. GmbH’s steel plant caused the

production to be interrupted, which gave rise to uncertainty with respect

to the delivery date. Discussions regarding price and delivery took place

between the parties. B. SA contended that A. GmbH made it clear that it

would not perform under the contracts unless B. SA agreed on a

substantial increase in the price. B. SA considered this as an anticipatory

breach of contract; it terminated the contracts with A. GmbH and bought

goods in replacement from C. B. SA brought arbitration proceedings

against A. GmbH. The sole arbitrator made an award for B. SA.

A. GmbH. applied to the Federal Supreme Court in order to have the

award set aside.