Swiss Federal Supreme Court rendered 35 arbitration cases in 2009 | Practical Law

Swiss Federal Supreme Court rendered 35 arbitration cases in 2009 | Practical Law

PD Dr. Nathalie Voser (Partner), Schellenberg Wittmer (Zurich)

Swiss Federal Supreme Court rendered 35 arbitration cases in 2009

Practical Law UK Legal Update 5-502-6686 (Approx. 3 pages)

Swiss Federal Supreme Court rendered 35 arbitration cases in 2009

by Practical Law
Published on 30 Jun 2010 • Switzerland
PD Dr. Nathalie Voser (Partner), Schellenberg Wittmer (Zurich)
A recently published German-language article gives a useful and detailed account of all arbitration matters which have been decided by the Swiss Federal Supreme Court in the year 2009.
The article (Diana Akikol, Die bundesgerichtliche Rechtsprechung zur Schiedsgerichtsbarkeit im Jahr 2009, in. Jusletter 21. Juni 2010) reports that out of the 35 cases rendered, 19 were appeals against awards rendered by arbitral tribunals in international arbitration cases. Article 190(2) of the Swiss Federal Statute on Private International Law (PILA) permits a final award to be set aside upon appeal for a limited number of reasons. The most frequently named reasons for setting aside a final award were:
  • The alleged lack of the arbitral tribunal's jurisdiction: Article 190(2)(b) PILA (eight cases).
  • The alleged violation of the right to be heard: Article 190(2)(d) PILA (seven cases).
  • The alleged violation of public policy: Article 190(2)(e) PILA (seven cases).
  • Awards allegedly being ultra or infra petita: Article 190(2)(c) PILA (three cases).
  • The alleged violation of equal treatment: Article 190(2)(d) PILA (two cases).
  • The allegedly improper constitution of the arbitral tribunal: Article 190(2)(a) PILA (one case).
Although in 19 cases 28 reasons were put forward, the author reports that in many cases the applicants had limited themselves to alleging only one reason for setting a final award aside. This seems to show that it is accepted today that the chances of succeeding with an appeal are higher if the appeal is focused on the strongest reason and not diluted by further weaker arguments.
The success rate for setting aside proceedings continues to be very low: out of the 19 appeals only three cases were successful. The cases are 4A_400/2008 rendered on 9 February 2009 regarding the right to be heard, 4A_96/2009 rendered on 9 June 2009 regarding jurisdiction, and 4A_358/2009 rendered on 6 November 2009 also regarding jurisdiction.
This demonstrates that the Swiss Federal Supreme Court continues its tradition of interfering with an award rendered by a tribunal only in exceptional but justified cases.