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

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No. 5

A.C. SE, A.D. Ltd., A.E. Ltd., J. Ltd. v. K. SAS
[The Arbitration Agreement Surviving a
Management Buy-Out, II]
BGE/ATF 134 III 186, No. 4A_468/2007
Headnote 1
A party complaining that the opposing party submitted further
argument in respect of an issue that was finally decided by the
arbitrators by way of a partial award must explain the facts and
reasons supporting its complaint.
Summary of the Decision
F.G. Corp. and its subsidiaries (one of which was K. SAS, “K.”) on the
one hand, and AB. Corp. and its subsidiaries on the other hand (inter alia
A.C. SE., A.D. Ltd., A.E. Ltd. and J. Ltd.), entered into a “Product
Development Agreement” (PDA) containing an arbitration clause
providing for ICC arbitration in Zurich. Due to a management buy-out,
K. left the F.G. Corp. group.
K. then brought arbitration proceedings against A.C., A.D., A.E. and J.
The arbitral tribunal took into consideration K.’s statement of claim as
well as its answer to the counterclaim despite the fact that they had been
filed belatedly, by one day. By a partial award of 27 May 2007, the
arbitrators assumed jurisdiction over the claim and the counterclaim. In
their award of 10 October 2007 the arbitrators decided on the points
which they had reserved in their previous decision, holding that A.C.,
A.D., A.E. and J. were jointly and severally liable to compensate K. for
the loss of investment opportunities in an amount of EUR 800,000.00
and dismissed the claim for damage to K.’s reputation. Furthermore,
they ordered the parties to pay interest.
A.C., A.D., A.E. and J. brought setting aside proceedings against this
award before the Federal Supreme Court objecting to arbitral jurisdiction
on the basis that the parent companies were the sole parties to the PDA.
Furthermore, they complained of a breach of their right to present their
case and their right to equal treatment since K.’s submissions had been
filed belatedly and the arbitral tribunal had wrongfully resumed the
arbitration proceedings.