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Can parties be bound to arbitration before signing a contract?

29 March 2016

Authors: Nathalie Voser; James Menz

In a French-language decision dated 18 February 2016, published on 2 March 2016, and slated for publication in the official court reporter, the Swiss Supreme Court affirmed an arbitral tribunal's jurisdiction arising from an arbitration clause in a draft contract. While no final contract had been signed, the arbitrator found that the parties had come to a final agreement regarding the arbitration clause during their negotiations of the main contract. The Supreme Court held that in the present circumstances, this was a proper application of the separability doctrine. In doing so, the court confirmed that the requirements as to form under Swiss arbitration law constitute a mandatory minimum from which the parties cannot derogate, but supported the view that the parties can agree to elevate these requirements. (Decision 4A_84/2015.)

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Published in Practical Law Arbitration

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Elliott Geisinger
Elliott Geisinger

Nathalie Voser
Nathalie Voser

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