X. v. Y. [The Consignment of Russian Styrene Monomer] No. 4A_294/2008 - Swiss International Arbitration Law Reports (SIALR) - 2008 Volume 2 No. 2
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22 pages
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Published:
December, 2008
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Originally from:
Swiss International Arbitration Law Reports - 2008 Vol. 2 No. 2
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Headnote
■ The parties’ right to present their case is breached where an
arbitrator owing to an inadvertent mistake or oversight has failed to
consider an important point on which a party has relied.
■ The principle of equal treatment requires an arbitrator to treat
the parties in the same manner at every step of the proceedings.
Summary of the Decision
X. and Y. entered into a contract whereby X. agreed to sell Y. 1,000
tons of styrene monomer. Upon Y.’s failure to comply with the loading
period stipulated in the contract, X. terminated the contract and sold the
goods to a third party. Y. filed a request for arbitration before the CCIG
seeking damages; X. sought the dismissal of the request and
counterclaimed for payment.
A sole arbitrator found that X. was not entitled to terminate the
contract and ordered X. to compensate Y. for direct losses. X. filed an
application to have the award set aside by the Swiss Federal Supreme
Court contending that the arbitrator breached (i) its right to present its
case and (ii) its right to equal treatment.
(i) On the Parties Right to Present their Case. The petitioner
complained that the arbitrator had (a) failed to give the petitioner an
opportunity to file comments on a procedural point, (b) failed to provide
reasons for a procedural decision, (c) breached one of his own procedural
orders and (d) failed to deal with an important point due to a manifest
error.
(a) On the Arbitrator’s Failure to Grant an Opportunity to File
Comments. The petitioner argued that the arbitrator ruled on the
admissibility of a request made by the respondent prior to the expiry of
the time limit for the petitioner to file comments on such request. The
Court first observed that an interim fax sent by the petitioner could
reasonably have led the arbitrator to understand that the petitioner did not
intend to submit further comments. The Court nevertheless held this
complaint to be unfounded because the petitioner had taken advantage of
a further opportunity to comment on the respondent’s request.