X. SA. v. Y. Inc. [The Commissions Relating to Water Supply Works] No. 4A_450/2007 - Swiss International Arbitration Law Reports (SIALR) - 2008 Volume 2 No. 1
Swiss International Arbitration Law Reports (SIALR) - 2008 Volume 2 No. 1
X. SA. v. Y. Inc.
[The Commissions Relating to Water Supply Works]
An application to set aside which fails to particularise properly the
grounds on which it is based is inadmissible.
The parties’ right to present their case imposes a duty on an
arbitrator to deal with the facts, law and evidence presented by the
parties and which are pertinent to the arbitrator’s decision; an
arbitrator has to provide a minimum of reasons in this respect.
Summary of the Decision
X. and Y. concluded a contract pursuant to which Y. undertook to
provide X. services in consideration for the payment of certain
commissions; the contract concerned water supply works. Y. brought
arbitration proceedings against X. seeking payment for outstanding
commissions. The sole arbitrator found for Y. and ordered X. to pay Y.
EUR 2,303,202 plus interest.
X. brought setting aside proceedings before the Federal Supreme Court
against the award claiming that the sole arbitrator breached its right to
present its case by failing to announce that evidence produced by X. in a
redacted form was insufficient to prove a fact in dispute. In the
arbitration X. had produced documents showing that it had paid certain
commissions, but the identities of the beneficiaries of such commissions
were redacted. The petitioner argued that the sole arbitrator drew an
adverse inference from its failure to disclose the beneficiaries of the
commissions and improperly concluded that the petitioner had failed to
prove that the commissions paid were related to the object of the contract
with Y. In the petitioner’s view, its right to present its case was therefore
breached as the arbitrator failed to provide any notice of the fact that
such evidence would be regarded as insufficient.
The Federal Supreme Court held that the application to set aside which
commingled the parties’ right to present their case, the arbitrator’s
assessment of the evidence, and a violation of procedural public policy
was not properly particularised and was therefore inadmissible.
To the extent that the application to set aside was admissible based on
an alleged violation of the parties’ right to present their case, the court