Revision of Arbitral Awards - Chapter 3 - Post Award Issues: ASA Special Series No. 38
Nathalie VOSER is a Partner in the Dispute Resolution Group of Schellenberg Wittmer in Zurich, Switzerland where she heads the International Arbitration team. Her practice is focused on international arbitration and litigation. She often acts as counsel before arbitral tribunals and as an arbitrator (co-arbitrator and chairperson) and also regularly advises clients involved in complex multi-jurisdictional disputes. Moreover, she has special expertise in disputes relating to construction and civil engineering projects, mergers and acquisitions and joint ventures, international commodity sales and license agreements, and the automotive and pharmaceutical industries. In 1988, Nathalie Voser graduated summa cum laude and two years later was admitted to the bar in Switzerland. In 1992, she became a juris doctor with summa cum laude and earned an LL.M. from Columbia University (New York) in 1994 with honors. In 2005, she received the venia docendi for private law, conflicts of laws, and comparative law, and now regularly teaches courses in commercial arbitration and other areas of Swiss private law. Ms. Voser is the author of many publications on general commercial law and international arbitration and currently also serves as Member of the Draft Steering Committee for the revision of the ICC Rules.
Anya GEORGE is an Associate in the Dispute Resolution Group of Schellenberg Wittmer in Zurich, Switzerland, where she focuses on international arbitration, litigation and debt enforcement. She graduated from the University of Fribourg in 2005 with a bilingual (French/German) law degree and a specialization in European law. After receiving a master’s in international relations from the University of Cambridge in 2006, Ms. George worked as a trainee at the International Criminal Court in The Hague. Prior to being admitted to the bar in Zurich and joining Schellenberg Wittmer, she clerked with the District Court of Horgen, Switzerland.
Originally from Post Award Issues: ASA Special Series No. 38
The principle of res judicata guarantees that a dispute will be subject to only one set of court or arbitration proceedings and serves to establish legal peace between the parties. Thus, as a rule, parties only get "one bite at the apple". They must set out the facts and evidence known and available to them at the time of the proceedings and this information will form the basis for the decision of the court or arbitral tribunal. However, when it is subsequently revealed that such basis was severely flawed, an exception to the principle of res judicata may be warranted. For this reason, many jurisdictions provide that in some exceptional instances proceedings may be re-opened and a judgment or arbitral award reviewed on the merits, when it is considered more important to have an unbiased decision which reflects the true facts of the case than to preserve the finality of the decision.
In the following, the focus shall be on the revision of arbitral awards only. As this article will show, national laws have chosen different approaches to the issue described above. Some are restrictive, choosing to favor the finality of arbitral awards by limiting the circumstances in which an award may be revisited. Other jurisdictions prefer a more extensive approach, allowing for various grounds on which to re-open the proceedings. Moreover, the procedure and means chosen to address the problem vary considerably between jurisdictions.
This chapter will first provide a cursory comparative overview of existing legislation and institutional arbitration rules governing the revision1 of arbitral awards.2 Thereafter, it shall focus on the workings of this remedy under the Swiss lex arbitri3 and, in particular, on an overview of the case law of the Swiss Federal Tribunal relating to applications for revision of international arbitral awards.4