Header Image

Rejection of challenge and reiteration of principles of right to a tribunal appointed expert

28 September 2017

Authors: Nathalie Voser; Benjamin Gottlieb

The Swiss Supreme Court has rejected a challenge for violation of the right to be heard, which was based on the tribunal's refusal to appoint an independent expert. By doing so, the Supreme Court clarified that, in principle, the appointment of a tribunal appointed independent expert is a right of the parties. However, that right is subject to certain conditions. In the present case, these conditions were not met, which is why the refusal to appoint an independent expert was not in violation of the petitioner's right to be heard.

It is noteworthy that the court emphasised that parties must make express requests for the 
appointment of an independent expert, in order not to forgo such right. Moreover, the court 
appeared to add a new requirement that parties submit the core documentary evidence on which the expert opinion will have to rely, together with the request to appoint an expert.

Finally, the court explained that its power to review the tribunal's appreciation of evidence from the viewpoint of a potential violation of the right to be heard is very limited. In fact, the right to be heard is only violated, if the refusal of a tribunal to admit evidence has a potential influence on the tribunal's decision. Without such influence, the Supreme Court held it cannot revisit the tribunal's decision in this regard, thereby qualifying its power to review. (Decision 4A_277/2017.)

Download PDF

Published in Practical Law Arbitration


Back to overview


Elliott Geisinger
Elliott Geisinger

Nathalie Voser
Nathalie Voser

Show team

Our International Arbitration Group

Drawing on an outstanding combination of skills and resources, Schellenberg Wittmer’s GAR30 recognized Inter-national Arbitration Group provides representation at the highest level in a broad range of complex international arbitration matters, from critical pre-arbitration injunctions to effective enforcement strategies.

For more information:

Visit Practice Area Site
Download Factsheet