In a French-language decision dated 17 October 2017, and slated for publication in the official court report, the Swiss Supreme Court declared inadmissible Croatia's application for the setting aside and revision of an UNCITRAL award. In the award, the arbitral tribunal, seated in Geneva, had dismissed Croatia's request to nullify an amendment to the 2003 Shareholders Agreement between Croatia and Hungary's largest oil company, MOL Hungarian Oil and Gas Company Plc (MOL) in relation to INA Industrija Nafte (INA), Croatia's largest oil company.
In the arbitration, Croatia alleged that MOL had obtained controlling management rights in INA by bribing Croatia's former prime minister. The arbitral tribunal determined that Croatia had failed to establish the existence of the alleged bribe and dismissed all of Croatia's claims.
Croatia filed a petition before the Swiss Supreme Court requesting that the award be set aside, or in the alternative, that the court order revision of the award, on the ground of its alleged discovery, after the issuance of the award, that its own nominated arbitrator had failed to disclose an alleged conflict of interest. Further, Croatia argued violations of its right to be heard and procedural public policy.
The key issue was whether Croatia's petition was admissible or whether, by providing in the underlying arbitration agreement that "there shall be no appeal to any court from awards rendered hereunder", the parties had validly waived their right to apply for the setting aside of the award, and if so, whether such waiver extended to an application for revision of the award where a ground to challenge an arbitrator is discovered after the issuance of the award, but within the time limit to file setting aside proceedings.
The Supreme Court held that the parties had validly waived the right to challenge the award and, consequently, Croatia's petitions for setting aside and revision of the award were both declared inadmissible. (Decision 4A_53/2017.)
Published in Practical Law Arbitration