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Swiss Supreme Court: challenging awards on ground of improper constitution of tribunal and arbitrators' duty to warn parties of any unexpected reasoning

12 March 2013

Authors: Nathalie Voser, Aileen Truttmann

In French-language decision 4A_538/2012 of 17 January 2013, the Swiss Supreme Court provided clarification regarding the scope for challenging awards under the Swiss Private International Law Act (PILA) on the ground of improper constitution of the arbitral tribunal, as well as regarding the arbitrators' duty to warn parties before rendering an award based on an unexpected reasoning.

The Swiss Supreme Court has ruled that an award can only be challenged under Article 190(2)(a) of the Swiss Private International Law Act (PILA) if the challenge raises issues relating to the nomination or replacement process, or the independence of the arbitrators. Issues regarding the power of individuals to file a request for arbitration on behalf of a company fall under Article 190(2)(b) PILA. As the Supreme Court will not review the ground if the wrong provision is selected, arbitration practitioners should be careful to distinguish issues relating to the constitution of the arbitral tribunal from issues relating to the jurisdiction of the arbitral tribunal.

The Supreme Court also clarified that the arbitral tribunal was not under a duty to warn the parties that it intended to use an exhibit in a different context from that for which its production was originally intended. Therefore, a party should immediately object to the production of an exhibit that is harmful to its case. (Decision 4A_538/2012.)

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Published in Practical Law Arbitration


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