X. and Y. v. A. SA, B. SA, C. AG and D. LLC [Costs in Setting Aside Proceedings, No. 3] No. 4A_44/2009 - Swiss International Arbitration Law Reports (SIALR) - 2009 Vol. 3 Nos. 1 & 2

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December, 2009

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Headnote

■ Where the petitioner brings setting aside proceedings but fails to

pay the advance on costs within the applicable time limit, and

subsequently fails to pay within a final time limit set by the Court,

the Federal Supreme Court shall declare the application to set aside

inadmissible (confirmation of previous decisions).

Summary of the Decision

The petitioners filed an application to set aside against a final award

made by an ad hoc arbitral tribunal. They also filed an application for a

stay of the enforceability of the award, which was denied by the Federal

Supreme Court. The petitioners asked the presiding judge to reconsider

this decision. The presiding judge issued an order setting a time limit for

an advance on costs to be paid. As this order was then set aside, the

petitioners declared that they had no obligation to pay the advance on

costs within the initial time limit and requested a fresh time limit for the

advance on costs to be paid.

The presiding judge ruled that the interpretation of the order advanced

by the petitioners was without foundation, but granted them a second

time limit which was final and not capable of any extension. The

petitioners did not comply with this time limit and the presiding judge

therefore declared that the application to set aside was manifestly

inadmissible. As a consequence, the petitioners’ request for

reconsideration and application for a stay of the enforceability of the

award became moot.

Statutory and Other Provisions Referred to in the Decision1

Federal Supreme Court Act, arts. 62(3), 66(1) and (5), 68(2) and (4),

108(1) (FSCA/BGG/LTF)