SWITZERLAND: STATUTE ON INTERNATIONAL ARBITRATIONAuthor(s): Charles Poncet and Emmanuel GaillardSource: International Legal Materials, Vol. 27, No. 1 (JANUARY 1988), pp. 37-57Published by: American Society of International LawStable URL: http://www.jstor.org/stable/20693184 .
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SWITZERLAND: STATUTE ON INTERNATIONAL ARBITRATION* [December 18, 1987]
Cite as 27 I.L.M. 37 (1988)+
Introductory Note
Charles Poncet and Emmanuel Gaillard
On December 18, 1987, after several years of
deliberation, the Swiss Parliament adopted the definitive text of the Federal Statute on Private International Law. The
statute will enter into force in the latter half of 1988, once
the referendum period has expired. The statute will be
reproduced in its entirety in 27 ILM N? 2 (1988).
Chapter 12 of the federal statute, which deals with
international arbitration, radically departs from the
Intercantonal Arbitration Convention of March 27, 1969 (the
"Concordat"). The Concordat contains numerous mandatory
provisions that were felt to be somewhat outdated in today's more flexible and increasingly competitive international
arbitration environment (cf. English 1979 Arbitration Act [18 ILM 1246 (1979)]; French Decree on International Arbitration
of May 12, 1981 [20 ILM 917 (1981)]; Belgian reform of 1985 [25 ILM 725 (1986)]; July 2, 1986 Dutch statute on arbitration [26 ILM 921 (1987)]; the new Canadian statutes [26 ILM 714 (1987)]; Florida International Arbitration Act [26 ILM 949 (1987)]). The Concordat even falls short of the standards set forth by the UNCITRAL Model Law, which is generally considered to be
*[The Introductory Note and translation were prepared for International Legal Materials by Charles Poncet, I.L.M. Corresponding Editor for Switzerland, Law Offices of Charles Poncet, Geneva, and Emmanuel Gaillard, I.L.M. Corresponding Editor for France, Professor of Law, University of Paris XII, European Counsel, Shearman & Sterling, Paris.]
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38
rather conservative [24 ILM 1302 (1985)]. (For a comparative
analysis of recent statutes, see Gaillard, "The UNCITRAL Model
Law and Recent Statutes on International Arbitration in Europe and North America", 2 ICSID Review N? 2 (1987)).
The Swiss federal statute is in many respects more
innovative than many of the recent statutes and far more
innovative than the UNCITRAL Model Law. Its originality stems
from (i) its scope, (ii) the autonomy granted to the parties in
shaping the arbitral process and (iii) the limited role of
Swiss courts in arbitral proceedings.
I. Sgope
A. In theory, the new federal statute does not supersede
the Concordat, which, after Zurich adopted it on July 1, 1985,
has been adopted in 22 out of the 26 Swiss cantons. The
Concordat, as well as local law in the remaining four cantons,
will still govern international arbitration if the parties so
choose (article 176 (2)).
In practice, however, the federal statute is likely to
become the only relevant Swiss law on international arbitration.
B. Whether the federal statute will apply to arbitration
clauses entered into prior to the effective date of the statute
is unclear. Unlike the Belgian act which applied retroactively
to pending arbitration [25 ILM 726 (1967)], the Swiss statute
does not address this issue.
To cure such ambiguity, the parties may, prior to the
effective date, stipulate in their arbitration agreement that
the statute will apply to potential disputes. Given the
importance accorded by the new statute to the intent of the
parties, such a clause is likely to be upheld by the Swiss
courts.
C. The federal statute covers only international
arbitration within the meaning of article 176(1) in contrast to
the Dutch statute, which also applies to domestic arbitration.
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39
However, what constitutes "international arbitration"
substantially differs from one country to another. While the
French statute looks to the nature of the underlying transaction (see article 1492 NCCP, 20 ILM 917 (1981)), the
Swiss statute determines the international character of the
arbitration with respect to the domicile or habitual residence
of the parties (article 176(1)), As a result, a dispute
arising out of a cross-border sale of goods by two subsidiaries
incorporated in Switzerland whose parent corporations are
incorporated outside of Switzerland, may be deemed to be
domestic and thus fall outside the scope of the act,
D. On the other hand, the definition of arbitrable
disputes is very broad under the federal statute, encompassing
any claim related to a party's assets, rights or liabilities
["nature patrimoniale"] (article 177(1)). The statute thus
avoids the difficulties that U.S. courts have encountered in
determining whether antitrust and securities law issues are
arbitrable. This provision goes as far as precluding states or
state-owned entities from invoking their domestic law to
challenge not only the arbitrability of the dispute but also
their capacity to enter into an arbitration agreement (article 177 (2)). It is questionable whether this provision, which is neither a substantive rule nor a true choice of law rule, will
suffice to resolve the difficult problems surrounding the
possible impediments to arbitration in the concerned
jurisdiction.
II? Party Autonomy in the Arbitral Process.
The following provisions are noteworthy:
A. The rules clearly favor validity of the arbitration
agreement (article 178).
B. Following the general trend, the rules governing procedure grant large freedom of choice to the parties. However, equal treatment and the right to be heard in an
adversary proceeding are mandatory (article 182 (3)).
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40
C. The law applicable to the dispute will be the "rules
of law" chosen by the parties or the "rules of law" which have
the closest connection with the transaction (article 187). Reference to the "rules of law" rather than the "law" suggests
that the parties, or alternatively the arbitrators, may (i)
select different laws to govern various aspects of the
transaction, (ii) "freeze" the law at any point in time or
(iii) resort to general principles of international law rather
than the law of any particular jurisdiction. However, absent
the parties' choice, the arbitrators' freedom to select
applicable law is restricted by the nexus requirement, whereas
under the French and Dutch statutes, for example, the
arbitrators are granted complete freedom. Nevertheless, this
provision is sufficiently flexible to lead, in practice, to
similar results and offers the added advantage of precluding a
comparative analysis of all the possible choice of law rules,
as is sometimes required in other jurisdictions.
m. court intervention in the Arbitral Processt
The new statute reduces to a minimum the importance of
court intervention.
A. The cantonal court of the situs of the arbitral
tribunal has jurisdiction to act as follows:
1. assist, if necessary, in establishing the arbitral
tribunal (article 179(2)(3));
2. rule on the challenge of arbitrators, unless the
parties have stipulated otherwise (article 180); or
3. assist in the taking of evidence, if requested by the
parties or by the arbitral tribunal (article 184).
It is noteworthy that each of the foregoing rules will
not apply if the arbitration Rules chosen by the parties or the
arbitration clause provide'otherwise.
B. Swiss courts may grant provisional measures but their
jurisdiction is clearly subordinate to that of the arbitral
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41
tribunal. In contrast to the Concordat, the federal statute
provides that provisional remedies, including the freezing of assets, should be referred to the arbitral tribunal itself. It
is only in the event that a party refuses to comply with the arbitral tribunal's order that the arbitral tribunal may ask a
court with proper jurisdiction to intervene (article 183).
C. The Swiss Federal Tribunal has exclusive jurisdiction to set aside arbitral awards unless the parties have requested that jurisdiction be conferred to the court designated in each canton for that purpose (article 191).
The grounds to set aside are far more limited under the federal statute than those enumerated in article 36 of the Concordat. In particular, the highly controversial ground based on arbitrary" has been dropped. This provision is now in line with French and Dutch law, the New York Convention and the UNCITRAL Model Law. Provided that the Federal Tribunal has a sound conception of "public policy" (see Lalive, "Transnational (or Truly International) Public Policy and International Arbitration", ICCA Congress Series, n? 3, Kluwer
1987, 257) no review on the merits will take place.
The Swiss legislature went even further by providing that if none of the parties has its domicile or habitual residence in Switzerland, they can exclude, partially or
totally, the grounds to set aside (article 192(1)). In this
respect, the Swiss approach differs from that of the Belgian statute, which reaches the same result without giving any
option to the parties (see article 1717 of the Code of Civil Procedure [25 ILM 726 (1986)]). This provision also differs from English law under which the "exclusion agreement" cannot
preclude the courts from reviewing the award if an arbitrator has, for example, "misconducted himself or the proceedings" [18
ILM 1246 (1979)]. In the case of total exclusion, Swiss courts will only ensure that the award meets the requirements of the 1958 New York Convention on the Recognition and Enforcement of Arbitral Awards if enforcement is sought in Switzerland
(article 192(2)). Although the statute is not clear in this
respect, it would seem reasonable to assume that such approach
also applies mutatis mutandis even where exclusion is partial
(see Gaillard, supra p. 1, at IV).
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I.L.M. Content Summary
CHAPTER 12 [of' the Swiss Statute on Private International Law]: INTERNATIONAL ARBITRATION
I. Scope. Seat of the arbitral tribunal (Article 176) - I.L.M. Page 44 [This chapter applies when the tribunal seat is in Switzerland and one of the parties has neither domicile nor habitual residence in Switzerland; determination of the tribunal seat]
II. Arbitrability (Article 177) - I.L.M. Page 45 [A state or state-controlled enterprise may not challenge arbitrability based on provisions of its own law]
III. Arbitration agreement (Article 178) - I.L.M. Page 45 [Must be in writing; validity is determined by an applicable body of law and does not depend on the validity of the underlying contract]
IV. Arbitral tribunal - I.L.M. Page 46 1. Establishment (Article 179) [Unless directed otherwise by
the parties, appointment of arbitrators shall be according to the law of the canton where the tribunal seat is]
2. Challenge of arbitrators (Article 180) [On grounds established by the parties; in any case, when independence of judgment is doubtful; the local canton court rules on challenges]
V. Lis pendens (Article 181) - I.L.M. Page 48 [Proceedings begin when a claim is filed or procedure for appointment of the tribunal is initiated]
VI. Procedure - I.L.M. Page 49 1. Principle (Article 182) [If not determined by the parties,
then determined by the tribunal; in any case, equal treatment of the parties and right to be heard shall be guaranteed]
2. Provisional and conservatory measures (Article 183) [May be issued by the tribunal, and the tribunal may require posting of bond by the requesting party; compliance is court enforceable]
3. Taking of evidence (Article 184) [Court orders (subpoenas) may be sought]
4. Other court assistance (Article 185) [Jurisdiction is with the court of the canton where the tribunal's seat is]
VII. Jurisdiction (Article 186) - I.L.M. Page 51 [Challenge must be raised prior to raising any merits defenses; rulings by the tribunal on its own jurisdiction are interlocutory]
VIII. Award on the merits - I.L.M. Page 52 1. Applicable law (Article 187) [The parties may authorize
the tribunal to decide ex aequo et bono (on equitable grounds)]
2. Partial award (Article 188) [May be issued unless prohibited by the parties]
3. Arbitral award (Article 189) [Unless otherwise directed by
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43
the parties, the award shall be determined by a majority vote and reduced to writing]
IX. Finality, action to set aside - I.L.M. Page 53 1. Principle (Article 190) [Grounds of attack: A sole
arbitrator was improperly selected; lack of jurisdiction; failure to rule on claim submitted; failure to grant a party equal treatment or a right to be heard. Interim awards may be attacked only on the first two listed grounds]
2. Jurisdiction (Article 191) [An action to set aside for lack of jurisdiction must be brought before the Federal Tribunal or, if the parties so direct, the local canton court]
X. Waiver (Article 192) - I.L.M. Page 55 [If neither party has domicile, habitual residence, or principle place of business in Switzerland, grounds of attack may be waived]
XI. Deposit and issuance of certificate of enforceability (Article 193) - I.L.M. Page 56 [With the Swiss court where the tribunal's seat is; certification by the tribunal shall be equivalent to such a filing]
XII. Foreign arbitral awards (Article 194) - I.L.M. Page 57 [Recognition and enforcement is governed by the New York Convention of 1958]
TRANSLATION OF CHAPTER 12 OF THE SWISS STATUTE ON
PRIVATE INTERNATIONAL LAW
* * * *
Notice to reader:
In Switzerland, all legislation is passed in French, German
and Italian. The following text was adopted by the Swiss
Parliament on December 18, 1987 in French and German; the
Italian text has not yet been submitted to the Parliament.
The French and German versions, although approved by the
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drafting committee, still show some discrepancies. These
have been marked and explained in footnotes where necessary.
CHAPTER U; IPTERPAT?ONAE ARBITRATION
Art, 176
I. Scope. Seat of 1. The provisions of the present the arbitral tribunal chapter shall apply to every
arbitration when the seat of the
arbitral tribunal is located in
Switzerland and when at least one of
the parties, at the time of the
conclusion of the arbitration
agreement, had neither its domicile
nor its habitual residence in
Switzerland.
2. The provisions of this chapter do
not apply when the parties have
excluded in writing its application
and have agreed to apply only the
cantonal procedural rules with
respect to arbitration.
3. The parties themselves or the
arbitration institution designated by
them, or in default thereof, the
arbitrators, shall determine the seat
of the arbitral tribunal.
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II. Arbitrability
III. Arbitration agreement
45
1. Any claim related to a party's
assets, rights or liabilities may be
submitted to arbitration^.
2. A state or an enterprise or
organization under state control
which is a party to an arbitration
agreement may not invoke its own law
in order to challenge the #. (2)
arbitrability of the dispute* ' or
its capacity to be a party to the
arbitration.
Art, 178
1. An arbitration agreement is
formally validN ' if it is made in
writing, or by cable, telex,
(1) The French text refers to "toute cause de nature
patrimoniale", the German text, to "jeder
verm?gensrechtliche Anspruch". The concept of "patrimoine" is particularly broad, encompassing all kinds of rights and liabilities. Accordingly, all types of claims, whether contractual, tortious, commercial or financial, are arbitrable.
(2) The German version adds "... within the scope of the arbitration agreement." ("... die Gegenstand der Schiedsvereinbarung ist.")
(3) The French version opposes the formal requirements of 178(1) ("... Quant ? la forme ...") to the substantive requirements of 178(2) ("... Quant au fond ..."). The German version simply adds "moreover" ("im ?brigen") to the formal requirement of 178(1).
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telecopy, or any other means of
communication providing proof of its
existence in a text,
2. Every arbitration agreement
shall be valid as to its substance,
provided it meets the requirements
dictated either by the law chosen by
the parties, or by the law governing
the subject matter of the dispute
and notably the law applicable to
the main contract, or by Swiss law.
3. The validity of an arbitration
agreement cannot be challenged on
the basis that the main contract is
invalid or that the arbitration
agreement relates to a dispute which
has not yet arisen.
Art, 179
Arbitral tribunal
1. Establishment 1. The arbitrators shall be
appointed, dismissed or replaced in
accordance with the agreement of the
parties.
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2. Failing such an agreement, an
application may be made to the court
of the canton in which the arbitral
tribunal has its seatv ,? such
( court shall apply by analogy*
'
the provisions of cantonal law as to
the appointment, dismissal or
replacement of arbitrators.
3. When a court is called upon to
appoint an arbitrator, it shall do
so, unless a summary examination
demonstrates that no arbitration
agreement exists between the parties.
Art, 180
2. Challenge of 1. An arbitrator may be challenged: arbitrators
a. when he does not meet the
qualifications agreed upon by
the parties;
b. when the arbitration rules
adopted by the parties provide
for a ground for challenge; or
(4) In French, "... juge du si?ge du tribunal arbitral ...",? in German, "... Richter am Sitz des
Schiedsgerichts ... " .
(5) The German text says "sinngem?ssH, i.e., "according to its meaning".
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48
c. when the circumstances may
legitimately lead to doubt about
his independence,
2. A party may only challenge the
arbitrator it has appointed on a
ground of which it became aware
after the appointment. The arbitral
tribunal and the other party must be
informed immediately of the ground
for challenge.
3. The court of the canton in which
the arbitral tribunal has its seat
shall make a final decision on the
challenge, unless otherwise provided
by the parties.
Art, 181
V. Lis pendens The arbitration proceedings are
deemed to be pending from the moment
one of the parties files a claim
before one or all of the
arbitrators^ designated in the
arbitration agreement or, in the
absence of such designation, when one
(6) In French, "saisit le ou les arbitres".
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49
of the parties initiates the
procedure for the appointment of the
arbitral tribunal*
Art. 182
VI. Procedure
1. Principle 1. The parties may agree upon the
rules of procedure, either directly,
or by reference to the rules of an
arbitration institution; they may
also subject the proceedings to a
procedural law of their choice.
2. If the rules of procedure have
not been agreed upon by the parties,
they may be determined by the
arbitral tribunal to the extent
necessary, either directly or by
reference to a law or to arbitration
rules.
3. Irrespective of the procedure
chosen by the parties, the arbitral
tribunal shall in all cases guaranty
equal treatment of the parties and
their right to be heard in adversary
proceedings.
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Art, 183
1. Unless otherwise agreed by the
parties, the arbitral tribunal may
issue provisional or conservatory
orders if requested by one of the
parties.
2. If the opposing party does not
voluntarily comply with the order
issued by the arbitral tribunal, the
latter may seek the assistance of
the court* , which shall apply
its own law.
3. The arbitral tribunal or the
court may grant provisional or
conservatory measures subject to the
receipt of adequate security from
the requesting party.
Art, 184
Taking of 1. The arbitral tribunal shall conduct evidence /g\
the taking of evidence itselfv .
Provisional and conservatory measures
(7) The French text refers to the -competent" court, i.e., one having proper jurisdiction.
(8) In German, "... nimmt die Beweise selber ab."; in
French, "... proc?de lui-m?me ? l'administration des
preuves."
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2. Where the assistance of a court
is necessary to gather evidence, the
arbitral tribunal, or the parties
with the agreement of the
arbitrators, may seek the assistance
of the court of the canton in which
the arbitral tribunal has its seat;
that court shall apply its own law.
Artt 185
4. Other court Where the assistance of a court assistance
is otherwise necessary, the court of
the canton in which the arbitral
tribunal has its seat shall have
(Q) jurisdiction* '.
Art, 186
vii. Jurisdiction 1. The arbitral tribunal shall rule
on its own jurisdiction.
2. The claim of lack of
jurisdiction must be raised prior to
any defense on the merits.
(9) The German text "... so ist der Richter am Sitz des Schiedsgerichts zust?ndig" is more precise than the French H... on requerra le concours du juge du si?ge ....H
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3. As a general rule* ', the
arbitral tribunal shall rule on its
jurisdiction by means of an
interlocutory decision^11^.
Art. 187
VIII. Award on the merits
1. Applicable law 1. The arbitral tribunal shall
apply the rules of law chosen by the
parties, or failing such choice,
the rules of law most closely
connected to the dispute.
2. The parties may authorize the
arbitral tribunal to decide ex aequo
et bono(12).
2. Partial award Unless the parties have agreed
otherwise, the arbitral tribunal may
(13) issue partial awards* .
(10) "En g?n?ral"; ".?? in der Regel".
(11) "... durch Vorentscheid"; "... par une d?cision incidente", as opposed to an award on the merits.
(12) In French, "statuer en ?quit?"; in German, "nach
Billigkeit".
(13) "Teilentscheide", or "sentences partielles", as opposed to "Schiedsentscheid" or "sentence arbitrale" at 189.
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Arti 189
3. Arbitral award 1. The award shall be issued
according to the procedure and in
the form agreed upon by the
parties*14^.
2. Failing such agreement, the
award shall be made by a majority of
the arbitrators, or, in the absence
of a majority, by the chairman
alone. It shall be in writing,
stating the reasons on which it is
based, dated and signed. The
chairman's signature shall suffice.
Art. 190
1. An award is final as of its
communication.
2. An award may be attacked on the
following grounds only:
a. when the sole arbitrator or the
arbitral tribunal was appointed
IX. Finality, action to set aside'15'
1. Principle
(14) This means that the parties may, among other things, waive the requirement at 189(2) that reasons must be given.
(15) In French, "recours"; in German, "Beschwerde".
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in violation of the applicable
rules<16);
b. when the arbitral tribunal
erroneously held that it had or
did not have jurisdiction;
c. when the arbitral tribunal ruled
on issues beyond the scope
of the claims or failed to
rule on one of the claims
submitted^17*;
d. when the arbitral tribunal
failed to grant the parties
equal treatment or the right
to be heard in adversary
proceedings ;
e. when the award is contrary to
public policy.
3. An interim award may only be
attacked on the grounds set forth
above at (2) (a) and (b) . The time
limit to file an action to set aside
commences with the communication of
the award.
Art. 191
2. Jurisdiction 1. An action to set aside may only
be brought before the Federal
(16) In German, -vorschriftswidrig-; in French, -irr?guli?rement-.
(17) The German -Rechtsbegehren- suggests legal issues, whereas the French un des chefs de la demande is somewhat broader.
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55
( 18 ) Tribunal* ? The proceedings
shall be governed by the provisions (19)
concerning public law appeals* 7
of the Federal statute organizing
federal courts*20^.
2. However, the parties may agree
that such recourse be brought before
the court of the canton in which the
( 21) arbitral tribunal had its seat* 7
in lieu of the Federal Tribunal and
the aforesaid court shall
conclusively rule on the
(22) matter* 7 ; the cantons shall
designate a sole cantonal court
having jurisdiction for this purpose.
Artt 192
X. Waiver 1. If neither party is domiciled,
nor has its habitual residence or
place of business in Switzerland,
the parties may expressly agree in
(18) The Federal Tribunal is the highest court in Switzerland,
(19) One possible recourse to the Federal Tribunal which excludes oral arguments and, generally, disposes of cases reasonably efficiently.
(20) Loi f?d?rale d'organisation judiciaire; Bundesgesetz ?ber die Organisation der Bundesrechtspflege.
(21) See supra, note 4.
(22) Meaning no subsequent appeal to the Supreme Court under any circumstances.
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the arbitration agreement or in a
subsequent written agreement, to
waive their right to challenge an
arbitral award before the Swiss
courts; they may also waive their
right only with respect to one or
some of the grounds set forth at
article 190(2).
2.
When the parties have waived all
recourse against the award and when
its enforcement is sought in
Switzerland, the New York Convention
on the Recognition and Enforcement
of Foreign Arbitral Awards of
June 10, 1958, shall apply by -, (23)
analogy* ' .
Art, 193
Deposit and issuance 1. Each party may file, at its own of certificate of enforceability expense, a copy of the award with
the Swiss court at the place where
the arbitral tribunal has its seat.
(23) See suora, note 5.
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2, The Swiss court shall certify,
upon the request of one of the
parties, that the award is
enforceable.
3, Upon the request of one of the
parties, the arbitral tribunal shall
certify that the award was made in
conformity to the provisions of the
present law; such a certificate is
equivalent to a filing before a
Swiss court.
Art, 194
XII. Foreign arbitral Recognition and enforcement of awards
foreign arbitral awards is governed
by the New York Convention on the
Recognition and Enforcement of
Foreign Arbitral Awards of June 10,
1958.
******
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