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Swiss Supreme Court confirms existing case law on the meaning of arbitrariness in domestic arbitration

24 September 2014

Authors: Nathalie Voser, Benjamin Moss

In a French-language decision dated 28 April 2014, but only recently published, the Swiss Supreme Court rejected an application to have a domestic arbitral award set aside on grounds of arbitrariness. It confirmed that an award, pursuant to Swiss law, can only be arbitrary from a factual point of view where an arbitral tribunal's findings manifestly refute the case's evidentiary record. An arbitral tribunal's evaluation or assessment of specific evidence, in contrast, cannot be arbitrary.
Although this decision relates to domestic arbitration, the Swiss Private International Law Act (PILA) permits parties to an international arbitration to "opt-out" of the PILA and proceed in accordance with the Swiss Civil Code of Procedure (CCP), which governs domestic arbitration. Likewise, the CCP permits parties to "opt-out" of the domestic arbitration regime in favour of the PILA. Therefore, the availability of the "arbitrariness" challenge in domestic arbitration should be on the mind of any party that is considering opting out of or into the PILA and may even be a reason in itself for doing so. (Decision 4A_112/2014.)

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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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