X., in liquidation v. Y. No. 4A_215/2008 - Swiss International Arbitration Law Reports (SIALR) - 2008 Volume 2 No. 2
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The Swiss law of international arbitration does not require Swiss
cantons to provide cantonal recourse against a decision by a cantonal
court regarding the appointment of an arbitrator.
Summary of the Decision
X. claimed that Y. and itself were bound by an arbitration agreement,
which made provision for arbitration in Geneva, Switzerland. X.
submitted an application for the appointment of an arbitrator to the
Geneva Court of First Instance. Y. objected that there was no arbitration
agreement between the parties. The Court of First Instance found that
the parties were not bound by an arbitration agreement and denied X.’s
X. appealed against this decision before the Geneva Court of Justice,
which dismissed the appeal holding that Geneva procedural law did not
provide for an appeal at the cantonal level against a judgment declining
to appoint an arbitrator. X. then filed an application for review before the
Swiss Federal Supreme Court against the judgment by the Geneva Court
The petitioner contended that the Geneva Court of Justice had (i)
interpreted, construed and applied the relevant provisions of the Geneva
Civil Procedure Act in an arbitrary manner; (ii) failed to respect the
principle of the supremacy of federal law; (iii) violated the petitioner’s
constitutional right to equal treatment; and (iv) violated the principle of
good faith by failing to inform the petitioner of its intention to overrule
previous decisions and by ordering the petitioner to bear the cost of the
(i) On the Arbitrary Interpretation and Application of Geneva Law
The petitioner contended that the Court of Justice interpreted and
construed Geneva law in a manner that contravened Parliament’s
intention to support and expedite the constitution of an arbitral tribunal.
The Swiss Federal Supreme Court held that the interpretation and
construction of Geneva law by the Court of Justice was not arbitrary.
First, a party may bring setting aside proceedings before the Swiss
Federal Supreme Court under article 190(2) ff. FPILA against a cantonal
decision appointing an arbitrator. Second, a party may file an application