Notification of incomplete award may still trigger time limit to appeal award

In a recently published German-language decision, the Swiss Supreme Court declared an application to set aside an allegedly incomplete and unsigned International Chamber of Commerce (ICC) award inadmissible, as the statutory 30-day time limit to challenge the award had elapsed. The court rejected the appellant's allegation that the notification of an incomplete and unsigned award does not trigger the statutory time-limit to challenge the award before the Supreme Court.

The underlying dispute arose in connection with a contract for the construction of a production plant. On 22 October 2018, the ICC sent a courtesy digital copy of the award to the parties. One day later, the appellant received the hardcopy of the award, which had been served by courier, in accordance with the ICC Rules. However, according to the appellant, the hardcopy was incomplete, with several pages missing, including dispositive parts of the decision and the signature page.

On 29 May 2019, the appellant challenged the award before the Supreme Court on the grounds that it had not been served in accordance with Article 100(1) of the Swiss Supreme Court Act (SCA). In its view, the notification of an incomplete and unsigned award is null and void, and therefore, the time limit to file the setting aside application should not be triggered until a new award has been properly served.

The Supreme Court declared the appellant's request inadmissible. It held that the principle of good faith in Article 5(3) of the Swiss Federal Constitution, which is applicable to arbitration, obliges a party to report any procedural error to any public authority with no delay. Due to the fact that the appellant failed to notify the ICC about the incompleteness of the award immediately on receipt of the copy, it forfeited its right to a new notification in the sense of Article 100(1) of the SCA. Therefore, while a timely request for additional notification of the award might have been considered the triggering event for the statutory 30-day time-limit, the fact that the appellant failed to request additional notification in a timely manner meant that the time-limit to challenge the award had elapsed.

Interestingly, the Supreme Court relied on Article 5(3), which applies to the relationship between an individual and a public administration, to conclude that the appellant had failed to comply with the good faith principle in its relationship with the ICC, a private entity. (Decision 4A_264/2019 (16 October 2019).)