X. SA v. Y. BV [The Sale of the Licensee Inventory] BGE/ATF 136 III 200, No. 4A_582/2009 - 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. 21

X. SA v. Y. BV

[The Sale of the Licensee Inventory]

BGE/ATF 136 III 200, No. 4A_582/2009

Headnote

■ Procedural orders cannot be challenged in setting aside

proceedings (confirmation of previous decisions).

■ A decision by an arbitrator granting interim relief is in the nature

of a procedural order. An application to set aside made against such

a decision is in principle inadmissible.

■ Whether a decision by an arbitrator is to be characterised as an

award or a procedural order depends on substance rather than

form; the title of the decision is irrelevant.

Summary of the Decision

Y. BV (as the licensor) and X. SA (as the licensee) entered into an

exclusive licensing agreement relating to the use of the licensor’s

trademark. The trademark was used on clothing products. After the

agreement was terminated a dispute arose between the parties as to the

manner in which the licensee tried to sell its inventory. X. SA brought a

WIPO arbitration against Y. BV. Both parties sought interim relief. The

sole arbitrator made a “preliminary award” ordering the licensee to

transfer the inventory to the licensor; the licensor was ordered to pay the

licensee a provisional sum for such inventory.

The licensor filed an application to the Federal Supreme Court in order

to have the “preliminary award” set aside.

The application was declared inadmissible.

The respondent objected, firstly, that the application to set aside was

belated. The Court found that the date when the “preliminary award”

was formally communicated to the petitioner in accordance with article

55(f) of the WIPO Expedited Arbitration Rules was relevant to determine

when the time limit had started to run. It was irrelevant that a copy had

been sent as an attachment to an email at an earlier date. The petitioner

had complied with the statutory 30-day time limit.

The respondent then argued that the application was moot, as the time

limit set by the sole arbitrator in order for the petitioner to comply with

the “preliminary award” had already lapsed. The Court found that,