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Right to be heard, change of procedural practices, dissenting opinions and tribunal submissions

14 July 2016

Authors: Nathalie Voser; Benjamin Gottlieb

The Swiss Supreme Court has rejected a challenge against a US$1.12 billion award for violation of the right to be heard. The court found that the tribunal had based its decisions on grounds argued by the parties. It also rejected the petitioner's argument that the tribunal violated its right to be heard by not applying the allegedly established practice of putting specific questions to the parties, before rendering a decision.
Furthermore, the court confirmed its standing case law that dissenting opinions, whether formally integrated into the decision or not, do not form part of an arbitral award and will not, therefore, be taken into consideration by the court when deciding challenges.
In addition, comments submitted by a tribunal chair, will not be taken into consideration, for, on their own, they cannot be attributed to the majority of the tribunal.
This is the latest decision in a 27­-year dispute arising out of several agreements and company structures concerning the delivery of oil from Iran to Israel and is part of a multitude of complex arbitrations, all with critical political components. (Decision 4A_322/2015.)

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Published in Practical Law Arbitration


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