X. SpA in liquidation v. Y. BV [Italian/Dutch HRSG Consortium] No. 4A_539/2008 - Swiss International Arbitration Law Reports (SIALR) - 2009 Vol. 3 Nos. 1 & 2

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December, 2009

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Headnote

■ Breaches of procedure or a decision which is wrong on the merits

are not sufficient to give rise to an appearance of bias on the part of

an arbitrator, save for breaches of procedure which are particularly

serious or repeated and which would amount to a manifest breach of

the duties of an arbitrator (confirmation of previous decisions).

■ An arbitrator cannot be challenged on the basis that he

telephoned each counsel separately to discuss whether a hearing

could be postponed.

■ The Federal Supreme Court has no power to review the weighing

of the evidence by an arbitrator, save within the very narrow scope

of review of public policy (obiter).

■ The principle of equal treatment in principle applies to the time

limits by which the parties are to file their written submissions.

However, the fact that the parties were granted different time limits

does not necessarily give rise to unequal treatment (obiter).

■ An award will run counter to public policy when it disregards

essential and generally accepted values which must underlie any and

all systems of law according to the prevailing conceptions in

Switzerland; a distinction is usually made between substantive

public policy and procedural public policy (obiter).

Summary of the Decision

The Italian company X. SpA and the Dutch company Y. BV formed a

consortium in order that Y. BV would be awarded by A. a contract for the

building of heat recovery steam generators (HRSG). The contract was in

fact awarded and was to be performed by X. SpA and Y. BV. A dispute

arose between X. SpA and Y. BV when the former refused to deliver

additional parts and Y. BV withheld a sum of money to be paid to X. SpA.

Y. BV gave X. SpA notice of partial termination of the contract,

whereupon X. SpA brought an arbitration before the ICC. The sole

arbitrator made an award for X. SpA holding that Y. BV had wrongfully

withheld money owed to the claimant.