Switzerland - Baker & McKenzie International Arbitration Yearbook: 2010-2011

Urs Zenhäusern is a Partner in Baker & McKenzie’s Zurich office. He regularly represents clients in arbitration proceedings as a party-counsel and also as an Arbitrator.

Joachim Frick is a Partner in Baker & McKenzie’s Zurich office. He often represents clients in merger & acquisitions and related arbitration proceedings as a party-counsel. He has written various publications on Swiss and international commercial arbitration proceedings and teaches as honorary professor at Zurich University.

Anne-Catherine Hahn is an Associate in Baker & McKenzie’s Zurich office. She practices mainly in the area of international commercial arbitration and litigation and also acts as a Lecturer at the University of Fribourg.

Luca Beffa is an Associate in Baker & McKenzie’s Geneva office. His practice focuses primarily on international and domestic arbitration, as well as commercial and employment litigation.

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Originally from Baker & McKenzie International Arbitration Yearbook 2010-2011

A. LEGISLATION, TRENDS AND TENDENCIES

On 1 January 2011 the new Swiss Federal Code of Civil Procedure entered into force. It unifies for the first time in Switzerland the rules of civil procedure applied in the different cantons. In its third part, it includes a full set of new rules concerning so-called domestic arbitration, i.e., arbitration proceedings conducted by an arbitral tribunal with seat in Switzerland between parties domiciled in Switzerland. The new rules replace the rules that so far have been included in the so called Concordat of Arbitration. The new rules do not apply to international arbitration, i.e., arbitral proceedings conducted by an arbitral tribunal with seat in Switzerland between parties of which at least one is domiciled outside Switzerland.

Table of Contents:

A. Legislation, Trends and Tendencies B. Cases B.1 No Challenge for Interim Measures B.2 Jurisdiction to Award Damages for Breach of an Arbitration Clause B.3 Lack of Jurisdiction for Lack of Arbitration Agreement B.4 Challenge of Arbitrators for Wrong Behavior and Violation of the Right to Be Heard B.5 Challenge of “In-House” Arbitrators B.6 Challenge of Arbitrators for Previous Involvement in the Case B.7 Inconsistent Awards and Public Policy. B.8 Res judicata and Public Policy B.9 Minimal Duty to Examine Relevant Issues and Right to Be Heard B.10 The “Pechstein” Saga B.11 The Valverde Case C. Arbitration and Insolvency: Switzerland C.1 The Challenge: The Vivendi/Elektrim Case C.2 The Distinction: Foreign Arbitration and Bankruptcy Debtor in Switzerland or Swiss Arbitration and Foreign Bankruptcy Proceedings C.3 Foreign Arbitration Proceedings and Swiss Bankruptcy Law C.3.1 Impact on the Arbitration Agreement C.3.2 Claims raised by the bankrupt debtor C.3.3 Claims against the bankrupt debtor C.3.4 No consideration of pending arbitral proceedings C.4 Swiss Arbitration Proceedings and Foreign Bankruptcy Laws C.4.1 Commencement of fresh proceedings by a foreign trustee in bankruptcy C.4.2 Suspension or termination of pending proceedings C.4.3 No mandatory suspension based on Swiss law C.4.4 Effect of foreign bankruptcy law rules C.5 Cost Issues in Relation to Bankrupt or Insolvent Parties