A. v. B. [The BVI Company Sold by a Swedish Seller] No. 4A_160/2009 - Swiss International Arbitration Law Reports (SIALR) - 2009 Vol. 3 Nos. 1 & 2

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December, 2009

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Headnote

■ The parties’ right to present their case under the Swiss Federal

Constitution requires in particular that the courts hear the parties’

relevant arguments and consider such arguments when deciding on

a case (confirmation of previous decisions).

■ The parties’ right to present their case includes a right to reply or

rebut the case of the other side. A court shall not only inform a

party of the filing of a submission by the other, but shall also give

such party an opportunity to reply (confirmation of previous

decisions).

■ If a court strikes off the record an unsolicited submission filed by

a party and states that such submission does not contain any

arguments relevant to the decision to be made, a petitioner must in

its application for review explain in which respect such finding by

the court is wrong.

■ When two companies are to be properly regarded in the light of

the rules of good faith as one and the same business entity, a

claimant having a contract with the first company may assert

contract rights against the second company provided, however, that

reliance by either company on its separate legal identity is

unconscionable under the circumstances of the case (confirmation of

previous decisions).

■ Whenever the separate legal identity of a subsidiary is disregarded

based on a lifting of the corporate veil, the arbitration clause binding

on the subsidiary may in principle be extended to the parent

company, as the effects of a contract binding on the subsidiary will

in such circumstances be shifted on to the parent company

(confirmation of previous decisions).

■ According to a general principle of procedure when a court is

called upon to determine its jurisdiction by a preliminary decision,

regard must be had for the nature of the claim made by the claimant

and the reasons provided in support of such a claim (confirmation of

previous decisions).