■ In order to be valid, an exclusion agreement must clearly and unambiguously set out the parties’ mutual intention to waive future setting aside proceedings. ■ An arbitration clause providing that “an arbitral award shall be final” does not amount to a valid exclusion agreement precluding setting aside proceedings. ■ Similarly, article 28 of the ICC Rules does not in itself amount to a valid waiver of the parties’ right to preclude setting aside proceedings whenever an arbitration agreement contains a general reference to the ICC Rules. ■ The principle pacta sunt servanda cannot be invoked in setting aside proceedings against an award whenever the petitioner complains only of the manner in which the arbitrator has interpreted and construed the agreement in dispute.
Summary of the Decision
X., a company incorporated in Bosnia-Herzegovina and two Italian companies, Y.Srl and Z. SpA, concluded a Cooperation Agreement relating to the construction of a plate-punching factory. Z. SpA was named as “guarantor” in the agreement. X. commenced an arbitration against the two Italian companies seeking (i) a declaration that the respondent was in breach of the Cooperation Agreement and (ii) an order for payment in the amount DEM 410,000.
Y. Srl sought the dismissal of the action and filed a counterclaim; Z. SpA submitted that it was not bound by the arbitration clause in the Cooperation Agreement. In an interlocutory decision, the arbitral tribunal declared that it had jurisdiction over all the parties, including the Italian guarantor. In a subsequent partial award, the arbitrators dismissed all of X.’s claims as well as Y Srl.’s counterclaim. X. then brought setting aside proceedings before the Swiss Federal Supreme Court on the ground that the arbitrators’ award breached public policy.
The Swiss Federal Supreme Court first observed that the agreement containing the arbitration clause was concluded prior to the entry into