X. SA v. Y. BV [Arbitrability of Decisions Relating to Summons to Pay] BGE/ATF 136 III 583, No. 5A_225/2010 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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November, 2013

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Originally from: 

Swiss International Arbitration Law Reports 2010 Vol. 4 Nos. 1 and 2

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No. 42

X. SA v. Y. BV

[Arbitrability of Decisions Relating to Summons to Pay]

BGE/ATF 136 III 583, No. 5A_225/2010

Headnote

■ Arbitrators have no jurisdiction and no power to set aside an

objection to a summons to pay made by a debtor in debt collection

proceedings, whether by a final decision or a provisional decision, as

the question whether an objection to a summons to pay is to be set

aside is not arbitrable.

■ The creditor is, in principle, free to waive his right to request the

provisional setting aside of an objection to a summons to pay and

initiate arbitration proceedings directly; such a waiver needs to be

made in express terms (confirmation of previous decisions).

■ There is no lis pendens between debt collection proceedings

brought by a creditor to obtain the provisional setting aside of the

debtor’s objection to a summons to pay, on the one hand, and an

action on the merits brought before arbitrators by a creditor seeking

a declaration that the debt exists, on the other (confirmation of

previous decisions).

Summary of the Decision

Y. BV, the holder of the trademark “A.” for several European countries,

and X. SA entered into an exclusive licence agreement providing that X.

SA had to pay royalties for the use of the trademark to Y. BV. The parties

agreed on WIPO arbitration, Geneva, under the WIPO Expedited

Arbitration Rules. Subsequently, Y. BV terminated the licence agreement

and X. SA filed a claim for damages for breach of contract and wrongful

termination of the agreement against Y. BV before the WIPO Arbitration

and Mediation Center. For its part, Y. BV had the debt collection office

notify X. SA two summons to pay for the royalties owed, to which X. SA

raised an objection. The presiding judge of the Veveyse District Civil

Court in Switzerland provisionally set aside the objections to the

summons to pay. The 2nd Civil Court of Appeal of the canton of

Fribourg allowed the appeals in part and provisionally set aside the

objections to the summons to pay.

The debtor filed an application for review before the Federal Supreme

Court.