X. AG v. Y. [The Taiwanese Power Plant Consultant II] No. 4A_69/2009 - Swiss International Arbitration Law Reports (SIALR) - 2009 Vol. 3 Nos. 1 & 2

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December, 2009

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Headnote

■ In setting aside proceedings against an arbitral award the Federal

Supreme Court will decide on the basis of the facts found by the

arbitral tribunal. The Court is not entitled either to review the

arbitrators’ findings of fact, further to a complaint made by the

petitioner, or to correct or supplement them of its own motion.

■ However, the Federal Supreme Court has the power to review a

finding of fact underlying the award sought to be set aside provided

that one of the complaints enumerated in article 190(2) FPILA is

raised against such finding or if new facts are exceptionally taken

into account in setting aside proceedings under article 99 FSCA,

namely in case such new facts or new evidence arise on the face of

the award (confirmation of previous decisions).

■ A petitioner seeking to have the findings of fact made by the

arbitrator reviewed by the Federal Supreme Court must prove with

reference to the record of the arbitration proceedings that such

allegations were already made before the arbitrators in accordance

with any procedural requirements as may be applicable

(confirmation of previous decisions).

■ Wherever a party takes the view that it is aggrieved by a breach of

its right to present its case to the arbitrator or by any other breach

of procedure, such party will forfeit its right to complain of such

breach unless it raises an objection in a timely manner in the

arbitration and undertakes all reasonable efforts in order to protect

its right to present its case and to equal treatment (confirmation of

previous decisions).

■ It is not in accordance with good faith for a party to complain of a

breach of procedure in judicial review proceedings for the first time

when it was possible to give the arbitrators an opportunity to

remedy such breach in the arbitration (confirmation of previous

decisions).