Originially from: World Arbitration and Mediation Review (WAMR)

Summary of Recent Swiss Federal
Court Rulings on Arbitration
By Mark H.C. Rogers, of Poncet Warluzel & Partners, Geneva, Switzerland.
The following Swiss Federal Court rulings deal with three essential issues that go
to the very roots of the arbitral dispute settlement mechanism.
P.v.S. Ltd.: Revision of Arbitral Awards
In P.v.S. Ltd. (published in part in 114 Semaine Judiciaire 454-460 (1992)), the
Court examined the question of the revision of arbitral awards. The Federal Law on
International Private Law is silent on this matter. The Court held that the legislature
had not deliberately sought to exclude a revision of arbitral awards as such, but rather
that the absence of any article pertaining to this question was due to the reluctance of
the legislature to intervene in international arbitration.
Having established that a legal loophole existed, the court considered the need to
regulate the revision of arbitral awards. Swiss law provides for revision to a greater
or lesser extent. Doctrine is unanimous in its acceptance of revision where arbitral
awards are concerned. Revision must, therefore, be considered an indispensable legal
remedy.
As a rule, revision can only be granted when there are valid grounds for such a
measure. The Court indicated that Articles 137, 140, 141, 142, and 143 of the Federal
Law on Judicial Organization should be applied per analogium. In this instance, the
fact that one of the witnesses was an interested party in the dispute did not constitute
grounds for revision under Article 147(b) of the aforementioned statute.
To whom will it fall to pronounce the revision of an arbitral award? Under Swiss
law, the legal remedy of revision does not give access to a higher authority, but to a
new decision by the same authority. The Court pointed out that this was an
unworkable solution for arbitral tribunals, which by essence cease to function once
the arbitral award has been made. The Court therefore felt justified in designating
itself as the sole authority for pronouncing on the need for revision, unless the parties
had made a written agreement concerning the application of the Cantonal Rules on
Arbitral Procedure. If revision proved necessary, a new arbitral award could only be
made by the original arbitral tribunal or a freshly constituted one.