X., in liquidation v. Y. No. 4A_215/2008 - Swiss International Arbitration Law Reports (SIALR) - 2008 Volume 2 No. 2

Page Count: 

33 pages

Media Description: 

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Published: 

December, 2008

Practice Areas: 

Court Decisions

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Originally from:

Swiss International Arbitration Law Reports - 2008 Vol. 2 No. 2

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Headnote

 

The Swiss law of international arbitration does not require Swiss

cantons to provide cantonal recourse against a decision by a cantonal

court regarding the appointment of an arbitrator.

 

Summary of the Decision

 

X. claimed that Y. and itself were bound by an arbitration agreement,

which made provision for arbitration in Geneva, Switzerland. X.

submitted an application for the appointment of an arbitrator to the

Geneva Court of First Instance. Y. objected that there was no arbitration

agreement between the parties. The Court of First Instance found that

the parties were not bound by an arbitration agreement and denied X.’s

application.

 

X. appealed against this decision before the Geneva Court of Justice,

which dismissed the appeal holding that Geneva procedural law did not

provide for an appeal at the cantonal level against a judgment declining

to appoint an arbitrator. X. then filed an application for review before the

Swiss Federal Supreme Court against the judgment by the Geneva Court

of Justice.

 

The petitioner contended that the Geneva Court of Justice had (i)

interpreted, construed and applied the relevant provisions of the Geneva

Civil Procedure Act in an arbitrary manner; (ii) failed to respect the

principle of the supremacy of federal law; (iii) violated the petitioner’s

constitutional right to equal treatment; and (iv) violated the principle of

good faith by failing to inform the petitioner of its intention to overrule

previous decisions and by ordering the petitioner to bear the cost of the

proceedings.

 

(i) On the Arbitrary Interpretation and Application of Geneva Law

 

The petitioner contended that the Court of Justice interpreted and

construed Geneva law in a manner that contravened Parliament’s

intention to support and expedite the constitution of an arbitral tribunal.

The Swiss Federal Supreme Court held that the interpretation and

construction of Geneva law by the Court of Justice was not arbitrary.

First, a party may bring setting aside proceedings before the Swiss

Federal Supreme Court under article 190(2) ff. FPILA against a cantonal

decision appointing an arbitrator. Second, a party may file an application