Originally From: Arbitration Law of Switzerland: Practice & Procedure

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— Chapter 2 —
CURRENT LAW AND PRACTICE

2.1 ARBITRATION AGREEMENT
2.1.1 Validity of Arbitration Agreements

An arbitration agreement is an agreement whereby two or more
parties agree that a dispute, which has arisen or may arise between them
in connection with a particular legal relationship, will be finally settled
by one or more arbitrators. A valid arbitration agreement is the basis of
the arbitral tribunal’s jurisdiction and excludes the jurisdiction of state
courts. The arbitral tribunal’s jurisdiction only exists within the limits of
such an agreement.
As will be explained below, the validity of the arbitration agreement
is subject to requirements as to form and substance (see Sections 2.1.1.b
and 2.1.1.c below). These requirements are set out in Article 178(1) and
(2) PILA. In addition, the subject matter of the dispute must be
arbitrable, failing which the arbitration agreement is invalid. The concept
of arbitrability (sometimes also referred to as objective arbitrability)
relates to whether the subject matter of the dispute may be validly
submitted to arbitration (see Section 2.4.2 below). This concept must be
distinguished from the concept that is sometimes referred to as subjective
arbitrability or subjective capacity to arbitrate, which relates to whether a
specific entity or person may be a party to an arbitration (see Section
2.4.3 below). As a general rule, a valid arbitration clause binds only the
parties that have agreed to it. However, as will be explained below, the
arbitration agreement may be extended to non-signatories under specific
circumstances (see Section 2.1.3 below).
a) Content of an arbitration agreement
i. Minimum essential content
A valid agreement to arbitrate requires an express or tacit exchange
of mutual declarations of intent with regard to the essential elements of
the agreement (essentialia negotii).