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Lack of valid arbitration agreement cannot be raised for first time in enforcement proceedings

22 March 2016

Authors: Nathalie Voser; Anne-Carole Cremades

In a French­language decision, the Swiss Supreme Court enforced a GAFTA arbitral award rendered in London despite the absence of an arbitration agreement in writing as required by the New York Convention. The debtor had raised the argument relating to the absence of a written arbitration agreement for the first time in the enforcement proceedings, having never questioned the existence of the arbitration agreement in the arbitration proceedings ­ and even submitted itself to the agreement in its written submissions. The Supreme Court found that under Swiss law this constituted an abuse of rights by the debtor. It emphatically stressed that since the formal validity of an arbitration clause is one of the conditions for the arbitral tribunal's jurisdiction, it cannot be challenged for the first time during the enforcement of the award.

Further, the Swiss Supreme Court confirmed the lenient approach of the lower Swiss Courts to the formalities necessary to obtain recognition and enforcement under Article IV of the New York Convention. (Decision 5A_441/2015.)

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Published in Practical Law Arbitration


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