Contractual Exclusion of Annulment Actions Against International Arbitral Awards Made in Switzerland - SIAR 2006-2
Laurent Hirsch, Partner, Hirsch Kobel, Geneva.
Originally from: Stockholm International Arbitration Review
CONTRACTUAL EXCLUSION OF ANNULMENT ACTIONS AGAINST INTERNATIONAL ARBITRAL AWARDS MADE IN SWITZERLAND
Swedish law does allow foreign parties to provide for the exclusion of any appeal against an arbitral award rendered in international commercial arbitration. This legal provision has received limited attention and has not yet been tested before the Swedish courts.
Swiss law also, since 1989, allows foreign parties to provide for the exclusion of any appeal against an arbitral award. Until 2004, this provision had not been applied by Swiss courts. Then, in 2005, the Swiss Supreme Court applied this provision in three cases, in which it found exclusion clauses effective and declined to consider annulment actions.
It might be interesting to review the matter in light of those recent cases and to examine how this exclusion issue is regulated by Swiss law.
II. SCOPE OF APPEAL EXCLUSION ALLOWED BY SWISS LAW
1. Annulment action in Switzerland: article 190 PIL
In Switzerland, challenging an international award can only be done through an annulment action, directly before the Swiss Supreme Court. The grounds supporting an annulment action are limitatively listed in Art. 190,2 PIL,3 under 5 heads:
"a) if the sole arbitrator was not properly appointed or if the arbitral tribunal was not properly constituted;
b) if the arbitral tribunal wrongly accepted or declined jurisdiction;
c) if the arbitral tribunal's decision went beyond the prayers for relief submitted to it, or failed to decide one of the items of the prayers for relief;
d) if the principle of equal treatment of the parties or the right of the parties to be heard in adversarial proceedings was violated;
e) if the award is incompatible with public policy."