Switzerland - National Report - World Arbitration Reporter (WAR) - 2nd Edition
Philippe Bärtsch is a Senior Associate in Schellenberg Wittmer’s International Arbitration Group in Geneva. He has acted as counsel in more than 30 international arbitrations involving a broad range of matters, including international construction contracts, joint venture agreements, sales and distribution contracts, license agreements, share purchase agreements and post-acquisition disputes. He has also represented parties before Swiss courts in arbitration-related court proceedings, such as judicial appointments of arbitrators or challenges of arbitral awards before the Swiss Supreme Court. Mr. Bärtsch holds a law degree from the University of Geneva Law School (2000) and a Master of Laws (LL.M.) from Harvard Law School (2004). He has been admitted to the Swiss Bar since 2002. He is a member of several professional associations, including the Geneva Bar Association, the Swiss Arbitration Association, the London Court of International Arbitration, the London Court of Arbitration Young International Arbitration Group, and the Harvard Club of Switzerland. He is an active member of the Marketing Committee of the Swiss Arbitration Association and co-chairs the Y.A.P. (Young Arbitration Practitioners).
Dorothee Schramm is an Associate in Schellenberg Wittmer’s International Arbitration Group. Her main areas of practice include domestic and international commercial arbitration and litigation, private international law, and Swiss and German contract and tort law. After graduating from the University of Göttingen (Germany) in 2001, Ms. Schramm obtained a doctorate of laws from the University of Lucerne (Switzerland) in 2004. She was admitted to the bar in Switzerland in 2007.
Originally from World Arbitration Reporter (WAR) - 2nd Edition
Preview Page
I. INTRODUCTION: ARBITRATION IN SWITZERLAND –
HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
Switzerland has long been a preferred venue for international
arbitration. In 1989, the Swiss legislature adopted a new law on
international arbitration, Chapter 12 of the Federal Act on Private
International Law of 18 December 1987 (“PILA”). This law has
received wide international praise and acceptance for its simplicity,
flexibility and pragmatism. Since then, a large body of case law has
developed. It provides guidance on the interpretation and application
of the relevant rules. The broad spectrum of precedents by the Federal
Supreme Court and a large number of academic sources (which—
though not binding—are frequently consulted by arbitrators, counsel
and the judiciary) provide for reliability and predictability.
This arbitration-friendly legal background, together with a longstanding
tradition of arbitration, Switzerland’s historical neutrality
and political stability, its excellent infrastructure, and the high
professional standards of the Swiss legal profession make Switzerland
one of the preferred venues for international arbitration.
2. Current law
In Switzerland, international and domestic arbitrations are
governed by different rules, Chapter 12 PILA for international
arbitrations and Part 3 of the Swiss Federal Code of Procedure (the
“FCCP”) for domestic arbitrations.1
I. INTRODUCTION: ARBITRATION IN SWITZERLAND – HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
2. Current law
a) Domestic arbitration law
b) International arbitration law
i. Main characteristics of Chapter 12 PILA
ii. Scope of application of Chapter 12 PILA
3. Law reform projects
4. Confidentiality and publication of awards
B. Arbitration Infrastructure and Practice in Switzerland
II. CURRENT LAW AND PRACTICE
A. Arbitration Agreement
1. Validity of arbitration agreements
a) Content of an arbitration agreement
i. Minimum essential content
ii. Other elements that should be included in an arbitration agreement
b) Substantive validity
c) Form requirements
d) Incorporation by reference
2. Enforcing arbitration agreements
a) Declaratory actions in court
b) Applications to decline jurisdiction based on the existence of an arbitration agreement
c) Anti-suit injunctions
3. Extension of the agreement to third parties
a) Successors in title and guarantors
b) Group of companies doctrine
c) Implied consent to be bound
d) Piercing of the corporate veil
4. Termination and breach
B. Doctrine of Separability
C. Jurisdiction
1. The arbitral tribunal’s decision on jurisdiction
2. Competence-Competence
3. Jurisdiction in the context of parallel proceedings
D. Arbitrability
1. Notion of arbitrability
2. Objective arbitrability
3. Subjective arbitrability or capacity
E. Arbitral Tribunal
1. Appointment of arbitrators
a) Number of arbitrators
b) Requirements for arbitrators
i. Independence and impartiality
ii. Duty of disclosure
iii. Requirements imposed by the parties
c) Appointment procedure
i. Appointment according to the parties’ agreement
ii. Appointment by the court
2. Challenge and removal
a) Grounds for challenge
b) Challenge procedure
i. Time limit for challenge of an arbitrator
ii. Appeal against a challenge decision
c) Replacement of arbitrators
3. Arbitrator liability and immunity
F. Conducting the Arbitration
1. Law governing procedure
2. Conduct of Arbitration
a) Basic procedural principles
i. The parties’ right to be heard
ii. The parties’ right to equal treatment
b) Party autonomy and arbitrators’ power to determine procedure
i. Party autonomy
ii. Arbitrator’s power to determine the procedure
3. Taking of evidence
a) Burden of proof
b) Procedural guarantees for the taking of evidence
c) Documentary evidence and privilege
d) Witnesses
e) Expert witnesses
f) Assistance by Swiss courts
4. Interim measures of protection
a) Jurisdiction for granting interim measures
b) Availability of preliminary or ex parte orders
c) Types of measures
i. Measures available to tribunals
ii. Measures available to Swiss courts
d) Conditions for measures
e) Form of measures
f) Enforcement mechanisms
g) Challenge of and appeal against interim relief granted
5. Interaction between national courts and arbitration tribunals
6. Participation of third parties
7. Law and rules of law applicable to the merits
a) Determining the applicable law and rules
b) Party autonomy
c) Determination by arbitrators
d) Application of the law by arbitrators
e) Decision ex aequo et bono
8. Costs
a) Determining the amount of costs
b) Allocating the costs
G. Arbitration Award
1. Types of awards
a) Partial and interim awards
b) Consent awards
c) Default awards
2. Form requirements
a) Essential content
b) Reasons
c) Time limits for making the award
d) Notification to parties and registration
3. Decision making
a) Deliberations
b) Majority or Consensus?
c) Dissenting and concurring opinions
4. Effects of award
5. Correction, supplementation, and amendment
H. Challenge and Other Actions against the Award
1. Setting aside
a) Grounds
i. Irregular constitution of the arbitral tribunal (Article 190(2)(a) PILA)
ii. Wrong ruling on jurisdiction (Article 190(2)(b) PILA)
iii. Award ultra, infra or extra petita (Article 190(2)(c) PILA)
iv. Violation of fundamental due process rights (Article 190(2)(d) PILA)
v. Violation of public policy (Article 190(2)(e) PILA)
b) Time limits
c) Procedure
d) Limiting judicial review of awards by contract
2. Revision of the award
III. RECOGNITION AND ENFORCEMENT OF AWARDS
A. Awards Rendered in Switzerland
1. Certificate of enforceability
2. Enforcement procedure
a) Enforcement of monetary awards
b) Enforcement of non-monetary awards
B. Foreign Awards
1. Statutory regime
a) Article 194 PILA and the New York Convention
b) Other international conventions
i. Bilateral Treaties
ii. ICSID Convention
2. Distinction between recognition and enforcement
3. Application of the New York Convention by local courts
a) Enforcement of foreign monetary awards
b) Enforcement of foreign non-monetary awards
c) Proceedings limited to the question of exequatur
IV. APPENDICES AND RELEVANT INSTRUMENTS
A. National Legislation (See CD ROM)
B. Major Arbitration Institutions
C. Cases
1. Swiss Federal Supreme Court decisions
2. Cantonal decisions
3. Other decisions
D. Bibliography