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Failure to comply with mandatory pre­-arbitral tier can result in stay of arbitration

29 March 2016

Authors: Christopher Boog; James Menz

In a French-­language decision dated 16 March and published on 29 March 2016, the Swiss Supreme Court overturned an arbitral tribunal's jurisdictional award. The arbitral tribunal had found that the contractual pre­arbitral dispute resolution tier (conciliation pursuant to the 2001 ICC ADR Rules) had been complied with. However, the Supreme Court found that the claimant had launched arbitration prematurely.
The Supreme Court decided the long-­open question of the consequence of a failure to comply with a mandatory pre-­tier (expressly left open in Case 4A_18/2007, Case 4A_46/2011 and most recently in Case 4A_124/2014), finding that such failure leads to the stay of the arbitration proceedings until the pre-­arbitral tier has been implemented. The modalities of the stay, in particular, the timeframe within which the arbitration proceedings shall resume in case of failure of conciliation, should be set by the arbitrators. (Case 4A_628/2015.)

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Published in Practical Law Arbitration

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