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Swiss Supreme Court confirms "regular constitution" of arbitral tribunal where French courts had appointed arbitrator

06 March 2013

Authors: Nathalie Voser, Anya George

In the French-language decision 4A_146/2012 rendered on 10 January 2013 and published on 19 February 2013, the Swiss Supreme Court confirmed the regular constitution of an arbitral tribunal in the long-standing dispute between National Iranian Oil Company and Israel.

The Swiss Supreme Court has upheld the decision of an ad hoc arbitral tribunal seated in Geneva in a long-standing dispute between the National Iranian Oil Company (NIOC) and the state of Israel. As Israel had defaulted in appointing its arbitrator, the French courts had stepped in and appointed an arbitrator in its stead. The Supreme Court concluded that the arbitral tribunal was "regularly constituted" within the meaning of Article 190(2)(a) of the Swiss Private International Law Act, allowing the arbitration to move forward.

This case presents the rare situation where the "juge d'appui" is located in a state other than the seat of arbitration. Determining the nature and effect of the decisions of the French courts was therefore complex. The Supreme Court considered itself bound by those decisions, at least in relation to the issue of the French courts' jurisdiction.

This decision marks the end of a drawn-out battle by NIOC to bring its quite significant claims to arbitration. (Decision 4A_146/2012).

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Published in Practical Law Arbitration


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