In a French-language decision dated 7 September 2016, which is slated for official publication in the court reporter, the Swiss Supreme Court analysed whether the subsequent discovery of grounds for recusal could serve as a basis for the revision of an international arbitration award. Leaving that question undecided, the court came to the conclusion that, in the specific circumstances of the case, there was no indication of a conflict of interest. The sole arbitrator, a lawyer with CMS von Erlach Poncet in Zurich, could not be considered as working for the same firm as that which delivered advice to an affiliate of the claimant, CMS Hasche Sigle in Germany.
In this decision, the Supreme Court chose to carry out an unusual balancing act. It gave a strong indication that it believed that the discovery of circumstances raising doubts as to the independence and impartiality of an arbitrator, should constitute grounds for revision of an international award. However, rather than making a definitive ruling on the issue, it chose instead to refer the matter to Parliament to be dealt with in the upcoming revision of the Swiss International Private Law Act. However, it has provided Parliament with a roadmap for the amendment of the lex arbitri on that issue.
The decision is also interesting in that it confirms the importance given to the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration, as an internationally recognised standard. (Decision 4A_386/2015.)
Published in Practical Law Arbitration