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Swiss Supreme Court: parties must object promptly to any irregularity in constitution of tribunal

24 July 2013

Authors: Nathalie Voser, Benjamin Moss

In German-language decision 4A_620/2012, dated 29 May 2013, the Swiss Supreme Court considered an application to set aside an arbitral award on grounds that the arbitral tribunal had been improperly constituted in light of a disclosure by one of the co-arbitrators. The applicant also argued that the arbitral tribunal had breached its right to be heard by rejecting a request to have certain documents admitted as evidence.

The Swiss Supreme Court has stated that a party's obligation to object promptly to any irregularity in the constitution of the arbitral tribunal applies at any stage of the process, not just once the arbitral tribunal has been formally constituted. As also noted in another Swiss Supreme Court decision we have reported on this week, Decision 4A_476/2012, the court reiterated the principle that parties must bring alleged violations of their procedural rights to the arbitral tribunal's attention as soon as they arise. Not doing so amounts to a waiver of a party's right to subsequently rely on those violations in setting-aside proceedings.

Furthermore, the court confirmed that a party's statement of satisfaction with regard to the manner in which the arbitral proceedings were conducted vitiates prior objections made by the party during the proceedings. (Decision 4A_620/2012.)

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Published in Practical Law Arbitration


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