A. Srl v. B. Ltd. and Arbitral Tribunal c/o Spartaco Chiesa, Esq. [The Porcelain Design & Distribution] - Swiss International Arbitration Law Reports (SIALR) - 2007 Vol. 1 Nos. 1 & 2

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21 pages

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December, 2007

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Originally from:
Swiss International Arbitration Law Reports - 2007 Vol. 1 Nos. 1 & 2

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Headnote

 

The Federal Private International Law Act (FPILA) enables the parties

to opt out of the provisions of chapter 12 FPILA and to agree in lieu

thereof on the exclusive application of the provisions of cantonal law. In

this respect, the following requirements must be met: (i) the exclusion of

the federal law must be express; (ii) the cantonal law chosen by the

parties must apply on an exclusive basis in lieu of the federal law; and

(iii) the agreed exclusion must be in writing.

 

A petitioner must sufficiently explain the reasons why delay in an

arbitration would have affected the validity of a duly notified award in

order for such delay to amount to a denial of justice.

 

A party is not entitled to revoke unilaterally the agreement made with

the arbitrators.

 

Summary of the Decision

 

A. and B. entered a contract whereby B. was to produce and distribute

certain porcelain products. According to A., B. failed to comply with

contractual obligations and the parties’ cooperation subsequently ended.

A. then filed a request for arbitration seeking damages and injunctive

relief. B. brought proceedings before the Federal Supreme Court to have

the award set aside.

 

The Federal Supreme Court held: in an international arbitration,

agreements between parties under article 176(2) FPILA to apply cantonal

procedural rules applicable in domestic arbitrations in lieu of the rules

under the FPILA are subject to three requirements, all of which must be

met, viz. (i) the express exclusion of the federal FPILA, (ii) the

designation of the chosen cantonal law is to be exclusive, and (iii) a

written agreement covering the two preceding points. The court further

held that a contract between a party and an arbitrator cannot be

unilaterally revoked, and, in any event, such an attempted withdrawal

was belated as the award had already been signed by the arbitrators and

sent to the Chamber of Commerce.

 

Accordingly, the application to set aside was dismissed.