Specific Issues in Different Types of Contractual Relations: Corporate Disputes - Chapter 14 - Performance as a Remedy: Non-Monetary Relief in International Arbitration: ASA Special Series No. 30
Rudolf Tschäni is a Partner in the Zurich office of the Swiss Law firm Lenz & Staehelin. He is regularly appointed as arbitrator in international commercial disputes, particularly in Corporate and M&A as well as Construction and Engineering related matters. Functions include chairman, sole arbitrator, co-arbitrator and counsel. He also acts regularly as an advisor on Corporate and M&A matters. He graduated from the University of Zurich, College of Europe and Harvard Law School, and is admitted to the bar of Zurich and New York. His experience includes cases under the Swiss Rules, and the rules of the ICC, the Swiss American Chamber of Commerce, and the Chamber of Commerce of Germany-Switzerland. He is the author of various articles and books, in particular M&A-Transactions pursuant to Swiss law, Zurich 2003, Public Tender Offers, Zurich/Basle/Geneva 2010, Post-closing Disputes on Representation and Warranties, ASA 2005, and M&A Disputes in Arbitration, Bern 2005.
As in other areas of law, the use of arbitration in corporate and M&A matters is increasing. While the use of arbitration in purely corporate matters is not frequent, the opposite is true for shareholders’ agreements, joint venture agreements and M&A-related contracts. As a consequence, the number of cases actually going to arbitration in this area is on the rise.1
There are a number of reasons for this trend. M&A activity in general has been very buoyant in recent years. Another reason is the international nature of many shareholders’ agreements, joint ventures and M&A transactions which lends itself to arbitration being chosen as a preferred mechanism to resolve disputes. It is characteristic of shareholders’ agreements, joint ventures, and M&A transactions that they are entered into by means of extended procedures and multiple agreements, and recourse to arbitration for dispute resolution may be preferred. In particular, joint ventures and M&A transactions are sometimes professionalized and concluded by means of complex and interlinked contracts.
Certainly, arbitration is preferred because of the particular M&A expertise of certain arbitrators. Also, the international background of arbitrators is considered to be a great advantage. Further, the parties appreciate the fact that arbitration procedures can be tailored to the particulars of a case, and that a settlement may be more easily reached. The confidentiality of the procedure is sometimes also seen as an advantage, and arbitration can offer a compromise on jurisdiction (by agreeing on avoidance of home bias).