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Right to be heard and equal treatment not violated by tribunal's considerations on enforceability of penalty clause under English law or by decision to allow belated cost submission

22 April 2015

Authors: Nathalie Voser, Jörn Eschment

The Swiss Supreme Court has ruled that a party's right to be heard and to equal treatment under the Private International Law Act was not violated by the arbitral tribunal's assessment on the enforceability of a penalty clause under English law or by taking into account a belated submission on costs.

With regard to the penalty clause, the court found that instead of simply denying the other party's position, the petitioner should have submitted its own evidence to support its own position. With regard to the belated submission on costs, an allegedly wrong application of the relevant procedural rules does not amount to a violation of the principle of equal treatment and cannot justify the setting aside of an international arbitral award.

This case provides a helpful reminder of the need to submit counter-evidence and that a simple objection against factual allegations made by the other side might not suffice if, and to the extent that, the arbitral tribunal might consider the allegations as proven. The decision also adds an interesting facet to the Supreme Court's case law on belated cost submissions. (Decision 4A_636/2014.)

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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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