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Arbitrators' assessment of evidence cannot be questioned under cover of alleged violation of right to be heard

28 January 2016

Author: Philippe Bärtsch

In a French­-language decision dated 6 January 2016, the Swiss Supreme Court rejected a petition to set aside an arbitral award based on an alleged violation of the right to be heard. In its award, the arbitral tribunal had awarded damages having relied on the claimant's expert evidence on quantum. In substance, the respondent criticised the arbitral tribunal for failing to take into account its criticisms of the expert evidence on the ground that they were mere allegations and, as such, insufficient to refute the other party’s expert evidence. By doing so, the arbitral tribunal had allegedly put the respondent in the same situation as if it had not been given any opportunity at all to present its case. The Supreme Court dismissed this argument finding that, under cover of the right to be heard, the respondent was in fact engaging in an appeal on the merits and disputing the arbitrators’ weighing of the evidence, which was not admissible. (Decision 4A_572/2015.)

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Published in Practical Law Arbitration

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