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Swiss Supreme Court confirms that foreign mandatory provision may affect arbitrability of dispute in Switzerland

24 April 2013

Authors: Nathalie Voser, Eliane Fischer

The Swiss Supreme Court has considered whether a foreign mandatory provision could potentially affect the arbitrability of a dispute in Switzerland.

In a German-language decision dated 18 March 2013, the Swiss Supreme Court confirmed that a foreign mandatory provision may affect the arbitrability of a dispute in Switzerland if ordre public reasons require the provisions in question to be respected.

The Supreme Court found that Bulgarian legislation that provides for exclusive jurisdiction of state courts in employment disputes did not prevent the dispute from being arbitrable in Switzerland.

The Supreme Court seeks to remind CAS tribunals that the issue of consent to arbitration has to be applied carefully, and it appears to reject the general understanding in sports arbitration that there is a rebuttable presumption in favour of arbitration. (4A_388/2012.)

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Published in Practical Law Arbitration


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