Originally from: 
Swiss International Arbitration Law Reports (SIALR) - 2008 Volume 2 No. 1

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No. 8

X. SpA v. Y.
[The Alleged Warrant Agreement]
BGE/ATF 134 III 260, No. 4A_500/2007
Headnote
Where an exclusion agreement covers setting aside proceedings
for lack of arbitral jurisdiction, the parties assume the risk that the
arbitrator may exceed his jurisdiction, and the exclusion agreement
is valid and binding nonetheless.
Summary of the Decision
X. and Y. were two shareholders in company B., who executed a put &
call contract whereby X. would transfer to Y. its shares in B. in
consideration for payment of a certain sum. The put & call contract
contained an arbitration agreement as well as an agreed waiver of setting
aside proceedings against any awards. Prior to the execution of the put
& call contract, X. had subscribed for EUR 20 million worth of warrants
in B., and X. and Y. discussed the possibility of extending to these
warrants the previously signed put & call contract. The parties disagreed
as to whether any contract was ever concluded as to the warrants. The
put & call contract was executed, and Y. then claimed it was under no
obligation to purchase the warrants.
Y. brought arbitration proceedings against X. seeking a declaration that
no agreement with respect to the warrants had been made, and
compensation for X.’s violation of the parties’ agreement to arbitrate,
considering that X. had sued Y. in Milan. The arbitral tribunal declared
that it had jurisdiction, and decided that Y. did not owe X. anything in
relation to the warrants in B.
X. then brought setting aside proceedings before the Federal Supreme
Court arguing that the arbitral tribunal improperly assumed jurisdiction;
Y. replied that the parties had validly waived their right to bring setting
aside proceedings against an arbitral award.
The Federal Supreme Court confirmed its recent decisions on
exclusion agreements under article 192 FPILA. In order to be valid, an
exclusion agreement must express the parties’ common intention to
waive future setting aside proceedings. The court further held that the
exclusion agreement between the parties satisfied the formal
requirements under article 192(1) FPILA. Where called upon to
determine the validity of exclusion agreements, the court will consider
the circumstances of each particular case, including whether the dispute
relates to a commercial arbitration or a sports-related arbitration.