Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years

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I. INTRODUCTION

Switzerland’s pro-arbitration stance is well known to the global arbitration community. Professor Bermann frequently referenced “pro-arbitration” Swiss law concepts in his lectures at Columbia Law School, which I had the pleasure of attending. He was able to draw from his broad firsthand experience of Switzerland’s approach—thanks to his involvement in numerous arbitrations involving Switzerland and his experience as a faculty member of the Geneva Center for International Dispute Settlement.

Switzerland’s affinity for policies encouraging arbitration began in 1866 with the first commercial arbitration conducted by the Geneva Chamber of Commerce, Industry and Services. It was followed by the publication of the first commercial arbitration rules by the Basel Chamber of Commerce in 1869 and the establishment of a commercial arbitration court in Zurich in 1911. The longstanding openness for arbitration and the respective policies were ultimately embodied on a federal level in Chapter 12 of the Swiss Federal Act on Private International Law (PILA) of 1989. The PILA’s Chapter 12—applicable to international arbitrations seated in Switzerland—constitutes a progressive legislation similar to almost none. The PILA’s innovative character cementing Switzerland’s “pro-arbitration” stance continues to be adjusted by way of amendments to its Chapter 12 (the latest in 2020), which take into account the needs of the modern arbitration world. 

This essay addresses three selected aspects of the PILA’s Chapter 12 in more detail: First, Swiss law’s embodiment of the principle of favor validitatis in relation to arbitration agreements. Second, the approach taken by the Swiss lex arbitri in case of simultaneous proceedings in front of a State court concerning the same dispute. Third, how international arbitration in Switzerland allows the disputing parties to waive their right to set aside proceedings before Swiss courts.