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Swiss Supreme Court considers to what extent an arbitral award must explicitly address relevant evidence

28 August 2013

Authors: Nathalie Voser, James U. Menz

The Swiss Supreme Court considered whether, under certain circumstances, there is a violation of the right to be heard where it could be proved that an arbitral tribunal had considered specific evidence, but had not explicitly referred to that evidence in its award.

In a German-language decision dated 27 June 2013, and published on 15 July 2013, the Swiss Supreme Court was confronted with an ongoing conflict between two of its precedents that establish, on the one hand, that an arbitral tribunal's decision need not be reasoned, but on the other that a tribunal must consider a party's arguments and evidentiary submissions.

The Supreme Court held that, in the circumstances of the case, the tribunal had not violated the right to be heard. It considered that, even though the tribunal's award had not specifically addressed a certain witness statement, it had referred to it in its award. The Supreme Court also held that the tribunal's failure to mention a specific e-mail in its award did not mean that it had been "entirely ignored".

The decision adds an interesting facet to the Swiss Supreme Court's rich right-to-be-heard jurisprudence. (Decision 4A_95/2013.)

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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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