Jurisdiction of an Arbitral Tribunal over Set-off under Swiss Rules of International Arbitration - Ten Years of Swiss Rules of International Arbitration - ASA Special Series No. 44

Author(s):

Vladimir Pavić

Page Count:

20 pages

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Published:

October, 2014

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1. INTRODUCTORY COMMENTS

The Swiss Rules of International Arbitration (hereinafter the Swiss

Rules) are a decade old (or young, depending on one’s perspective).

Their content is based upon the UNCITRAL Rules, a tried and tested

tool for ad hoc arbitration.1 Inevitably, initial improvements to the

underlying foundation were necessary in order to mold the starting

model into a final product more useable in the context of institutional

arbitration. Another round of amendments (2012) was introduced to

address the ever-changing needs of arbitration users.

The facts presented above resemble to a great extent the stories

behind a number of the institutional rules nowadays. Putting aside the

peculiar design of the ‘institution’ (i.e. the supporting institutional

structure) administering the Swiss Rules, many of the present

institutional rules resemble each other in attempting to provide a

flexible and efficient framework and, often, in using the UNCITRAL

Rules as the starting point for the solutions they offer. This, in turn,

means that the competition between the institutional arbitrations

becomes more of a competition between their administrative

capacities, reputation and advantages or disadvantages of their

geographic locations, rather than a competition between the solutions

contained in the respective rules.

The Swiss Rules (both their 2004 and 2012 version), however, do

contain a provision which stands out as unique. Art. 21(5) Swiss Rules

provides as follows:

The arbitral tribunal shall have jurisdiction to hear a set-off

defence even if the relationship out of which the defence is

said to arise is not within the scope of the arbitration clause,