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Commercial Arbitration

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Switzerland

Diane Vallée-Grisel , Dominique Brown-Berset and Dominique Ritter
Brown&Page

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  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. Switzerland is a party to the New York Convention (NYC), which was approved by the Federal Parliament on 2 March 1965, ratified on 1 June 1965 and entered into force on 30 August 1965.

    Switzerland originally made use of the reciprocity reservation of article I(3) of the Convention, until 23 April 1993, when the reservation was withdrawn following the enactment of Chapter 12 of the Swiss Private International Law Act (PIL Act). Since then, all foreign awards, regardless of the country where they have been made, are recognised and enforced in Switzerland pursuant to the provisions of the NYC (article 194 PIL Act).

  3. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  4. Switzerland remains a party to the 1923 Geneva Protocol on Arbitration Clauses in Commercial Matters, although the Protocol ceased to have effect for all contracting states which became parties to the NYC (article VII(2) NYC). The Protocol only applies now for Iraq.

    Switzerland is a party to the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), article 54(1) of which provides for ICSID awards to be enforced as if they were final court judgements in the country where enforcement is sought. In practice, this provision, as well as the provisions dealing with recognition and enforcement of foreign awards contained in the bilateral treaties to which Switzerland is a party, hardly have had any significance since article 194 PIL Act came into force and imposed the application of the NYC to all foreign awards, wherever issued (see question 1).

  5. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  6. Since 1 January 1989, international arbitration has been governed by articles 176–194, chapter 12 PIL Act, titled International Arbitration. Chapter 12 applies to any arbitration where “the seat of the arbitral tribunal is in Switzerland and if, at the time of the conclusion of the arbitration agreement, at least one of the parties had neither its domicile nor its habitual residence in Switzerland” (article 176(1) PIL Act).

    The provisions contained in Chapter 12 PIL Act were originally drafted prior to the adoption of the UNCITRAL Model Law and finalised while discussions regarding the Model Law were still under way. Chapter 12 PIL Act is not, therefore, based on the Model Law and is a stand-alone statute. Chapter 12 is more concise but there are no fundamental differences between Chapter 12 and the Model Law.

    Articles 176-194 PIL Act afford maximum flexibility and autonomy to the parties with minimum court intervention, while ensuring equal treatment and the parties’ right to be heard in fair adversarial proceedings (articles 182(3) and 190(2)(d) PIL Act).

    Until 1989, international and domestic arbitration was governed by the 1969 inter-cantonal arbitration Concordat, which continued to govern domestic arbitration until 31 December 2010. It was replaced on 1 January 2011 by articles 353–399, Part 3 of the Federal Code of Civil Procedure (CCP). Article 176(2) PIL Act was amended accordingly to provide for the possibility for parties to an international arbitration to opt out of Chapter 12 PIL Act in favour of articles 353–399 CCP pursuant to an express agreement in writing specifically excluding Chapter 12 PIL Act. The Federal Tribunal held in December 2015 that a reference in an arbitration clause contained in a contract between two non-Swiss parties to the application of the FIFA regulations and the Swiss Civil Code did not constitute a valid exclusion of Chapter 12 PIL Act in favour of the CCP because it did not expressly exclude Chapter 12.

    While opting out agreements in favour of the Concordat proved to be scarce because it was generally considered that chapter 12 PIL Act was better suited to international cases than the Concordat, it remains to be seen if this will be true for articles 353-399 CCP. Indeed, on a number of issues, Part 3 CCP provides a much more flexible and more attractive legal framework for domestic arbitration than the Concordat. Party autonomy is at the core of these provisions and they go as far as allowing parties in domestic cases to opt out of the CCP to apply Chapter 12 PIL Act (article 353(2) CCP). As of the date of this report, there has been no published case dealing with a domestic arbitration in which the parties opted out of the CCP in favour of Chapter 12 PIL Act. The Federal Tribunal has held in this context that a mere choice of arbitration rules (such as, eg, the ICC Rules of Arbitration) to govern the arbitral proceedings cannot be construed as a valid opting out of the CCP in favour of chapter 12 PIL Act. As is the case for opting out of Chapter 12 PIL Act in favour of the CCP, the exclusion of the CCP must be expressly stated in the arbitration agreement. Thus, the standards to validly opt out of the CCP for domestic cases in favour of Chapter 12 PIL Act are the same as those governing opting out of Chapter 12 PIL Act in favour of the CCP for international cases.

    Article 393 CCP provides more grounds for setting aside awards than article 190 PIL Act (see, question 41 below) since an award may be set aside when “the result of the award is arbitrary either because it is based on findings which are manifestly contrary to the facts on record or because it constitutes a manifest violation of the law or of equity” (article 393(e) CCP). This allows for broader scrutiny of the award than under article 190(2)(e) PIL Act, which deals with the more restricted concept of an award that is incompatible with public policy. Consequently, parties to international contracts that opt for arbitration in Switzerland may wish to consider opting out of Chapter 12 PIL Act if they want to extend the possibility of challenging the award. Conversely, parties to domestic cases may wish to opt out of the CCP in favour of Chapter 12 PIL Act to limit such grounds. Given the potential effects or difficulties to which an opting out provision may give rise, drafters of such arbitration clauses would be well advised to take professional advice before entering into any such an agreement.  

  7. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  8. Several international associations or bodies relevant to international arbitration are based in Switzerland. Among those located in Geneva are the Arbitration Centre of the World Intellectual Property Organization (WIPO), the Dispute Settlement Bodies of the World Trade Organization, the United Nations Compensation Commission, and the International Air Transport Association (IATA), which also offers an arbitration system that is not limited to its members. 

    The seat of the Court of Arbitration for Sports (CAS) is in Lausanne and, thus, all CAS cases are governed by chapter 12 PIL Act regardless of where they take place because generally there is always one party in these cases that had neither a domicile nor a habitual residence in Switzerland at the time the arbitration agreement was entered into. If all parties are domiciled or have a habitual residence in Switzerland, the CCP will apply.

    Since 2004, the Chambers of Commerce of Basel, Berne, Geneva, Lausanne, Lugano, Neuchâtel and Zurich have adopted uniform arbitration rules titled Swiss Rules of International Arbitration (Swiss Rules), which are available at https://www.swissarbitration.org/Arbitration/Arbitration-Rules-and-Laws. 

    The Swiss Rules may be used for cases with seat in Switzerland or abroad (article 1(2) Swiss Rules). A revised version of the Swiss Rules came into force on 1 June 2012. Unless the parties have agreed otherwise, the revised Rules apply to all arbitral proceedings in which the Notice of Arbitration was filed after that date (article 1(3) Swiss Rules). While the revision did not constitute a complete overhaul of the Swiss Rules, it introduced some interesting new features, such as the Emergency Arbitrator procedure of article 43. 

  9. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  10. Foreign arbitral institutions may freely operate in Switzerland. Geneva and Zurich are among the most frequently chosen seats in ICC arbitration, for example. They are also popular venues for LCIA or ICDR cases and increasingly so for ad hoc UNCITRAL investment or other treaty cases (eg, for Energy Charter Treaty cases).

    Switzerland has traditionally been one of the preferred venues for the settlement of inter-state disputes, in particular in Geneva, which hosts the United Nations. Geneva is a frequent venue for hearings in Investment Treaty cases or ad hoc cases involving states or state entities.

  11. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  12. Courts at both cantonal and federal levels may have jurisdiction in relation to arbitration-related matters. They are generally well versed in international arbitration matters and have extensive experience in the field.

    The Swiss Federal Tribunal (Federal Tribunal), the country’s highest court, has exclusive jurisdiction over actions to set aside arbitral awards rendered in Switzerland (article 191 PIL Act for awards issued in international arbitration matters and article 389(1) CCP for domestic awards). In domestic arbitration, parties can also agree by express agreement in the arbitration clause or subsequently that applications to set aside an award be filed with the competent cantonal court rather than the Federal Tribunal. 

    The Federal Tribunal’s case law is a reference in international arbitration matters. It is regularly cited by foreign courts and is generally highly considered by international scholars and practitioners.

    The judges of the First Civil Court of the Federal Tribunal, who are in charge of arbitration matters, are probably among the leading jurists in the field and have significantly contributed to and shaped the harmonious development of international arbitration through their decisions. 

    This affords the predictability and certainty that parties are seeking when selecting a seat in Switzerland and certainly also contributes to the popularity of Swiss venues amongst international arbitration users.

    Cantonal courts at the seat of the arbitration are the supporting courts to appoint arbitrators in case of difficulty (article 179(2) PIL Act), to decide on the challenge of an arbitrator in case the parties have not determined the procedure for such challenge (article 180(3) PIL Act), and to assist with the taking of evidence when requested (article 184(2) PIL Act). They may also be called upon to enforce provisional or protective measures ordered by arbitral tribunals (article 183(2) PIL Act).

    Agreement to arbitrate

  13. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  14. Pursuant to article 178(1) PIL Act, an arbitration agreement is valid if made in writing, by telegram, telex, telecopy or any other means of communication, such as e-mail, which permits it to be evidenced by a text. Under certain specific circumstances, a valid arbitration agreement may also result from an exchange of drafts containing an arbitration clause during the course of negotiations despite the fact that no contract is eventually concluded, on condition that the parties’ intent to arbitrate all differences regarding the contract can be established. In such a case, should negotiations fail and no contract be signed, a dispute relating to such negotiations (eg culpa in contrahendo) may be arbitrated on the basis of the arbitration clause contained in the drafts exchanged.

    As regards its substantive validity, an arbitration agreement is valid if it conforms either to the law chosen by the parties, to the law governing the subject matter of the dispute, or to Swiss law (article 178(2) PIL Act). 

    Article 178(2) is a conflict-of-laws provision in favour of the validity of the arbitration clause or agreement. 

  15. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  16. As a general rule, all disputes or matters of a pecuniary nature may be arbitrable (article 177(1) PIL Act), which reflects a broad concept of arbitrability. 

    Article 177(1) is a substantive private international law rule that applies to all cases with seat in Switzerland, regardless of the parties’ national laws or of the law governing their contract. Arbitrators sitting in Switzerland will thus determine if a claim is pecuniary and thus usually at the parties’ free disposition pursuant to Swiss law. This issue may give rise to divergent doctrinal views when it comes to issues that, for example, are by statute reserved to the exclusive jurisdiction of specific courts under the law governing the contract or the dispute or claims that are pecuniary but not at the free disposition of the parties. Specific legal advice should be sought as early as possible for such cases.

    Article 177(2) PIL Act further provides that a state or an entity controlled by a state cannot rely on its own law to challenge its capacity to be a party to an arbitration or the arbitrability of the dispute. 

    In domestic arbitrations, the decisive criterion to determine arbitrability is not the pecuniary nature of the dispute but whether the parties can freely dispose of the claims raised (article 354 CCP). If they can, the dispute is arbitrable.

  17. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  18. The Federal Tribunal has acknowledged in several cases the extension of an arbitration agreement to third parties in cases where such parties had clearly expressed their intention to be bound by the arbitration agreement through conduct or in their contract. This was affirmed in cases dealing with assignment of contracts, the assumption of a debt, or the incorporation of an arbitration agreement by reference or in general conditions. Other cases have acknowledged the extension of an arbitration agreement to a third party which participated in the performance of the contract containing the arbitration clause when it could be inferred from such participation that the third party actually intended to be bound by the arbitration clause.

    The PIL Act is silent on the questions of the participation of a third party through joinder or a third-party notice. Pursuant to the principle of party autonomy, the participation of a third party would require the consent of all concerned parties. 

    In contrast, for domestic arbitrations, article 376(1) CCP provides for the possibility of arbitral proceedings conducted by or against multiples parties on condition that (i) these parties are bound by one or several compatible arbitration agreement(s) and (ii) the claims are either identical or factually connected. Article 376(3) CCP also allows the joinder of a third party to a pending arbitration as well as the intervention of a third party in a pending case, on condition that there is an arbitration agreement between the third party and the parties to the arbitration and subject to the arbitral tribunal’s consent.

    Article 4(2) of the Swiss Rules provides that arbitral tribunals may allow the joinder or intervention of a third party when so requested in a pending case, “after consulting with all the parties, including the person or persons to be joined, taking into account all relevant circumstances”. This provision does not, of course, give rise to difficulties when all concerned parties agree to the joinder. However, when there is a concern or an objection raised against such a joinder, the arbitral tribunal must determine whether the joinder is admissible under the lex arbitrii – which is not necessarily the PIL Act as the Swiss Rules may be used anywhere in the world (article 1(2) Swiss Rules) – and whether the parties may be deemed to have expressly, or impliedly by reference to the application of the Swiss Rules, agreed to the joinder. Specialised legal advice should be sought in such cases because the result of this assessment largely depends on the specific facts or circumstances of the case. 

  19. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  20. The consolidation of separate arbitral proceedings may only occur if all parties involved agree to it.

    Article 4(1) Swiss Rules is innovative on this question and provides for the possibility of consolidating separate arbitral proceedings when the parties are already involved in other arbitral proceedings governed by the Rules. Consolidation may even be ordered by the Arbitration Court of the Swiss Chambers’ Arbitration Institution administering the arbitration where the parties to the new request are not identical to those in the prior pending proceedings on condition that, taking into account all relevant circumstances, including the links between the cases and the progress already made in the pending arbitral proceedings, a consolidation appears justified. Such is the case where the disputes are closely linked, with similar underlying facts and similar evidence required, and the pending proceedings would not be delayed by the consolidation.

  21. 11.

    Groups of companies
    Is the 'group of companies doctrine' (or any other basis for piercing the corporate veil) recognised in your jurisdiction?

  22. The group of companies' doctrine is not recognised as such under Swiss law. Consequently, obligations incurred by a subsidiary are generally not extended to a parent company or to other companies within the same group that are not privy to the contract, unless specifically agreed. However, under certain specific circumstances, such as in case of an assignment of a claim or a contract or in case of an assumption of debt, an arbitration agreement may be binding on parties that did not sign it or did not originally enter into the agreement.  

    In addition, contractual obligations of a subsidiary company may be attributed to the parent company when there is confusion between the spheres of influence and activities of the parent and the subsidiary companies. In such relatively rare cases, piercing of the corporate veil (Durchgriff) has been one of the legal theories relied upon by arbitrators and upheld by case law to disregard the formal independence of the parent and the subsidiary companies towards third-parties. According to this theory, a non-signatory corporate parent has been held to be bound to an arbitration clause because it proved to be particularly closely involved in the negotiation and performance of the contract containing the clause, thereby creating the appearance that it was a party to that contract. A similar conclusion was reached in cases where the parent company’s or the subsidiary’s reliance on its distinct legal identity was held to be constitutive of an abuse of right under the specific circumstances of the case. There is such an abuse, for example, when the parent company assigns the contract containing the arbitration clause to a subsidiary that is obviously insufficiently capitalised, continuously intervenes in the affairs and management of the subsidiary, and/or co-mingles the assets of the two companies.

  23. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  24. The separability or severability of an arbitration clause from the main contract is acknowledged in article 178(3) PIL Act, which states that the arbitration agreement cannot be contested on the ground that the main contract is not valid. In a case decided in 2016, the Federal Tribunal held that the text of article 178(3) was not sufficiently clear. On the one hand, it only refers to the validity of the main contract, which is too restrictive since the issue of separability of an arbitration clause may also arise in relation to a non-existent contract (when parties eventually decided not to enter into the main contract) while on the other hand it incorrectly suggests that the invalidity of the main contract never has an impact on the validity of the arbitration agreement, which is too broad a statement. Indeed, under certain circumstances, the “defect” affecting the validity of the main contract also affects that of the arbitration agreement, for instance, when a party does not have the capacity to enter into the main contract or lacks the necessary powers to represent the party that is intended to be bound by the agreement, or when a party enters into the main contract under duress. The Federal Tribunal also relied on separability to hold that an arbitration clause contained in drafts of a contract that was eventually not entered into to be valid when the parties’ common intent to conclude an arbitration agreement regardless of the result of the ongoing negotiation of the main contract is established.

  25. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  26. Article 186(1) PIL Act, which is a mandatory provision, affirms the competence-competence principle by providing that “the arbitral tribunal shall decide on its jurisdiction”. Its decision may be challenged before the Federal Tribunal (article 190(2)(b) PIL Act) without suspension of the arbitration proceedings. 

    An arbitral tribunal sitting in Switzerland may decide on its jurisdiction notwithstanding the fact that an action having the same subject matter is already pending between the same parties before a state court or another arbitral tribunal, “unless there are serious reasons to stay the proceedings” (article 186(1)bis PIL Act; see also article 7 PIL Act). An action brought before a state court for a mere declaration that no valid arbitration agreement exists between the parties is not admissible.

  27. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  28. The arbitration agreement must identify the parties that are bound by it, reflect their consent to arbitrate, and define the disputes that may be the subject of an arbitration.

    Ideally, it should indicate where in Switzerland the seat of the arbitral tribunal is, the applicable law, the composition of the arbitral tribunal, and the language of the arbitration. In ad hoc cases referring to the UNCITRAL Rules of Arbitration, it is best to provide for an appointing authority in case of difficulty in constituting the arbitral tribunal.

    When neither of them is domiciled in Switzerland, the parties may include an express waiver of any action to set aside the award in their arbitration agreement (article 192(1) PIL Act). In practice, this is rarely done.

  29. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  30. Both institutional and ad hoc arbitration are commonly practiced in Switzerland. Ad hoc cases are often truly ad hoc, in that that they do not refer to the UNCITRAL Rules and when they do generally remain totally detached from the Permanent Court of Arbitration (PCA).

  31. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  32. It is always advisable to draft a multi-party arbitration agreement with precise definitions of the parties, to provide for mandatory notification to all other parties of any request to arbitrate and to describe the exact procedure to be followed to constitute the arbitral tribunal. 
    Multi-party agreements should also provide for an appointing authority which will nominate all three arbitrators if a party or a group of parties fail to appoint an arbitrator.

    Multi-party provisions are often best addressed by reference to arbitration rules which deal with this in a comprehensive and clear manner (eg, article 8 Swiss Rules, articles 8 and 12 ICC Rules, article 8 LCIA Rules, article 9 SIAC Rules, among others). 
    Where the performance of a contract may be delegated to a third party or is guaranteed by a third party, it is prudent to insert the same arbitration clause in all agreements and to secure the advance agreement of the third party to a consolidation of all proceedings related to the performance of the main contract.

    Commencing the arbitration

  33. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  34. Arbitral proceedings are commenced by a notice or a request for arbitration addressed by the claimant to the respondent, or to the arbitral institution chosen by the parties to administer their disputes. There are no limitation periods or mandatory rules as to the form or content of the request for arbitration in international arbitration in the PIL Act (the former issue is a matter of the substantive governing law and not one of procedure or arbitration law).

    Article 181 PIL Act provides that an arbitration is pending from the moment the arbitrators designated in the arbitration agreement are seized with the claim or when one of the parties initiates the procedure for appointing the arbitral tribunal.

    Choice of law

  35. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  36. Pursuant to article 187(1) PIL Act, the arbitral tribunal must apply the law or the rules of law chosen by the parties. In the absence of such a choice by the parties, the arbitral tribunal is to apply the law or the rules of law with which the case has the closest connection (id).

    The closest connection principle embodied in article 187(1) PIL Act constitutes a specific conflict-of-laws rule from which the arbitral tribunal cannot deviate.

    Appointing the tribunal

  37. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  38. A party’s choice of an arbitrator is only limited by the grounds for a challenge of the arbitrator under article 180(1) PIL Act. In particular, the arbitrator must meet the qualifications agreed upon by the parties, be independent from the parties and impartial. The Federal Tribunal has ruled that the same degree of independence is expected and required from the co-arbitrators and the chairperson.

  39. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  40. Foreigners may – and very commonly do – act as arbitrators in Switzerland. Depending on the nationality of the arbitrator, a visa may be required to enter Switzerland (which is a Schengen area member state even though Switzerland is not an EU Member) for hearings or meetings.

    There are no Swiss tax consequences when a non-Swiss resident acts as an arbitrator. 

  41. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  42. If the mechanism agreed by the parties for the selection and appointment of arbitrators fails, the competent cantonal court at the seat of the arbitral tribunal may appoint them, unless a summary examination of the case shows that no arbitration agreement exists between the parties (article 179(2) and (3) PIL Act).

  43. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  44. Swiss law does not specifically address the question of immunity or liability of arbitrators. The arbitrator’s contract with the parties (receptum arbitrii) is a sui generis type of mandate under Swiss law, for which she or he is liable in case of breach. However, such liability is considered to be limited to gross negligence and intentional misconduct when the arbitrators are acting in their judicial capacity.

    When the applicable rules of arbitration provide for the immunity of arbitrators, such exclusion of liability is valid under Swiss law, except in cases of gross negligence or wilful misconduct in relation to which liability cannot be excluded.

  45. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  46. In non-administered arbitrations, the arbitral tribunal usually requests advance payments for fees and costs from the parties. These are kept in special accounts (separate from the chairperson’s or his or her firm’s accounts) and an accounting is submitted to the parties in the end of the case or at agreed intervals.

    If the parties fail to pay the requested advances, the tribunal may order the stay of the proceedings until payment or, indeed, terminate the proceedings. The Federal Tribunal ruled that a decision by the arbitral tribunal ordering advance payments of costs or staying the proceedings until such payment is made is a procedural order and not an award. It cannot, therefore, be challenged, unless the arbitral tribunal, with such a decision, implicitly decided on its own jurisdiction. 

    Challenges to arbitrators

  47. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  48. Pursuant to article 180(1) PIL Act, an arbitrator can successfully be challenged if: 

    • s/he does not meet the qualifications agreed upon by the parties; 
    • there exists a ground for a challenge under the applicable rules of arbitration; or 
    • objective circumstances may give rise to justifiable doubts in the eyes of a reasonable party, as to the independence of the arbitrator.

    Article 180(2) PIL Act limits challenges by providing that “no party may challenge an arbitrator nominated by it, or whom it was instrumental in appointing, except on a ground which came to the party’s attention after such appointment.” This ground “must be notified to the arbitral tribunal and to the other party without delay.” 

    Absent an agreement to the contrary, the competent cantonal courts of the seat of the arbitration have jurisdiction to decide upon challenges of arbitrators (article 180(3) PIL Act). Their decision is final and cannot be challenged before the Federal Tribunal.

    In cases administered by the Swiss Chambers’ Arbitration Institution, challenges are decided upon by that body’s Arbitration Court, whose decisions are final (article 11 Swiss Rules). The Court has no obligation to give reasons for its decision (article 11(3) Swiss Rules). Similarly, the ICC Rules do not require the ICC Court of Arbitration to give reasons for its decisions on challenges of arbitrators (article 11(4) ICC Rules). However, a 22 February  2016 ICC Note to Parties and Arbitral Tribunals on the conduct of the arbitration under the ICC Rules of Arbitration now provides that upon request by all the parties to the arbitration, the Court may communicate these reasons.

    The type of institutional decisions addressed above is not subject to challenge before the Federal Tribunal because these are mere administrative decisions. They can nonetheless be raised before the Federal Tribunal in the context of setting aside proceedings against a final award if they may be deemed to have resulted in the irregular composition of an arbitral tribunal (article 190(2)(a) PIL Act). 

    While the IBA Guidelines on Conflicts of Interest in International Arbitration may be considered by the court or the institution deciding upon challenges, they are not binding, unless the parties have agreed upon their application. The Federal Tribunal has held that they constitute a useful tool for the development of best practices in international arbitration. 

    Interim relief

  49. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

  50. In the absence of an agreement by the parties to the contrary, the arbitral tribunal may, on motion of one party, order conservatory measures to maintain the status quo or regulate the status of a legal relationship by interim measures for the duration of the proceedings (article 183(1) PIL Act). Arbitrators may order any type of measures, including orders for temporary performance or measures unknown in Swiss law. 

    The jurisdiction of the arbitral tribunal to order provisional measures is parallel to that of the competent domestic courts. 

    In case the party concerned does not voluntarily comply with the interim measures they have ordered, arbitral tribunals may request the assistance of the court of the seat to enforce them (article 183(2) PIL Act).
    Swiss courts do not grant anti-suit injunctions where proceedings are brought elsewhere in breach of an arbitration agreement. Following the principle of competence-competence, they leave the determination of the validity of an arbitration agreement to the arbitral tribunal alone. 

  51. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  52. According to the prevailing view in case law and legal commentary, orders for the provision of security for costs constitute interim measures within the meaning of article 183(1) PIL Act. Such decisions are therefore generally issued as procedural orders, not awards. Accordingly, both the arbitral tribunals and the local courts have parallel jurisdiction to make orders for security for costs.

    Procedure

  53. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

  54. The arbitral tribunal must ensure equal treatment of the parties and their right to be heard in fair adversarial proceedings (article 182(3) PIL Act). Together with the parties, it is bound by the general duty of good faith in procedural matters, which derives from article 2 of the Swiss Civil Code (CC) and requires parties to cooperate in the establishment of the relevant facts by adducing evidence. Article 2 CC further implies that the parties are to raise any objection they may have to the arbitral tribunal’s jurisdiction or to the conduct of the proceedings without delay (article 186(2) PIL Act).

  55. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  56. There is no default, strictly speaking, in arbitration and the respondent’s refusal to participate does not paralyse it. Provided that the respondent was given reasonable notice of the start of the case and the opportunity to present its case – and its fundamental procedural rights were thus respected –, a default award is valid and enforceable under Swiss law.

  57. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  58. All common types of evidence are admitted (documents or testimonial evidence, experts, etc).

    The arbitral tribunal must conduct the taking of evidence and cannot delegate it to one or two of its members. It enjoys wide discretion in the appraisal of the adduced evidence.

    The IBA Rules are taken into account where the parties agreed on their application. They are also often referred to by analogy.

  59. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  60. The arbitral tribunal (or a party, with the consent of the arbitral tribunal) may request the assistance of the competent courts at the seat with the taking of evidence (article 184(2) PIL Act). The court may, for example, order a witness domiciled in the canton to attend a hearing or request judicial assistance from other Swiss or foreign authorities.

  61. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  62. While far-reaching pre-trial discovery or extensive document production is not the norm under Swiss law, the parties’ general duty to cooperate in good faith in the proceedings deriving from article 2 CC, which is applicable in all arbitration cases with seat in Switzerland, may require the production of documents the parties might not have intended to rely on.

    The party requesting production must identify the specific documents and demonstrate that they are material to its case. If so, the arbitral tribunal will generally order production. The Tribunal is entitled to draw a negative inference from a party’s refusal to comply with that order, which seldom occurs in practice.

    There is increasing resistance to the systematic application of the so-called “Redfern schedules” by some arbitrators because these schedules, when used before the relevant legal issues have been identified, tend to prove extremely expensive for relatively little benefit (it is not uncommon that the majority of the work carried out in relation to such schedules prove to relate to issues that are eventually irrelevant for the resolution of the dispute). Users therefore increasingly tend to prefer to reserve the schedules for very complex construction cases or the like, or to use them at a stage in the arbitration where the pleadings have already been exchanged and supporting documents filed with such pleadings, which narrows the scope of documents that can legitimately be requested and reduces costs.

  63. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  64. The respect of the parties’ right to be heard does not make it mandatory to have a final hearing on the merits. Post-hearing briefs are often closing the parties’ arguments on the merits.

  65. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  66. Yes, an arbitral tribunal with its seat in Switzerland may conduct hearings and procedural meetings anywhere suitable or convenient.

    Award

  67. 34.Majority decisions
    Can the tribunal decide by majority?
  68. In the absence of a contrary agreement by the parties, “the arbitral award shall be made by a majority, or, in the absence of a majority, by the presiding arbitrator” (article 189(2) PIL Act). In case of diverging views between the arbitrators, the chairperson is empowered to decide alone.

  69. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  70. The PIL Act does not limit the relief available from an arbitral tribunal. Limitations may, however, result from the law governing the contract, the laws of the place(s) where enforcement of the award will be sought or the parties’ agreement. Where Swiss substantive law is applicable, the arbitral tribunal may fill gaps and even amend or rescind the contract in certain circumstances. It can also grant specific performance but cannot award punitive damages.

  71. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  72. Dissenting opinions may be issued but are not common. They do not form part of the award, even though they may formally be incorporated in the award. According to the Federal Tribunal, they constitute mere independent views that have no legal significance. Thus, a dissenting arbitrator cannot demand that the opinion be communicated to the parties in case it is not attached to the award, unless otherwise agreed by the parties. 

  73. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  74. Unless otherwise agreed in the arbitration agreement, the arbitral award shall be in writing, supported by reasons, dated and signed. The signature of the presiding arbitrator is sufficient (article 189(2) PIL Act).

    The award must also generally comply with the applicable rules of procedure and be in the form agreed upon by the parties (article 189(1) PIL Act). Contract drafters should address specific form requirements in the arbitration clause whenever it is likely that the award will have to be enforced in a country where specific or unusual formalities are required for the award to be recognised and enforced (eg, the signatures of the arbitrators must by notarised, all pages of the awards signed, etc).

  75. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  76. The most important time limit parties must be aware of is the 30-day deadline from notification to challenge the award under article 190 PIL Act (see, also, articles 77 and 100(1) of the Swiss Federal Tribunal Act, which are also applicable to this question). Any later challenge will be dismissed as inadmissible. When the agreed applicable rules provide for the notification of the award by registered mail or courier, the 30-day time limit starts running the day after the award is received. In case the rules allow email notification, the time limit starts running the day following receipt of the emailed award.

    The Federal Tribunal held in a recent case relating to an ad hoc arbitration in which no specific rules had been agreed and most communication had occurred by email that the 30-day deadline to challenge the award had to be deemed to start running the day after the award was emailed to the parties, regardless of the date at which the parties received the hard copy. On this basis, the challenged was dismissed as inadmissible. In case of doubt and when no specific rule on the subject has been agreed, it is therefore prudent to calculate the 30 days from the receipt of the email under cover of which the arbitral tribunal or the institution sent the award.

    Although the PIL Act does not contain any specific provision on interpretation or correction of the award (contrary to the CCP, which addresses this issue in detail in article 388), the Federal Tribunal has held that arbitral tribunals have the power and jurisdiction to correct or interpret an award even in the absence of a provision to this effect in the arbitration rules or of a specific agreement by the parties. The time limit within which an application for the interpretation or correction of an award is to be lodged is disputed: the prevailing view amongst commentators is that the same time limit as that applicable to applications to set aside awards should apply by analogy; others consider that the time limit should start running only upon the discovery of a mistake in the award that is to be corrected.

    An application to correct an award does not suspend the 30-day time limit to challenge the award.

    In domestic arbitration, article 388(2) CCP provides for a double time limit within which interpretation or correction of the award may be sought: the request must be submitted within 30 days from the discovery of the error or the parts of the award that need to be interpreted and in any event no later than one year from the communication of the award. In arbitration administered by the Swiss Chambers’ Arbitration Institution, articles 35 and 36 of the Swiss Rules provide that the request for interpretation or correction must be made within 30 days from the receipt of the award.

    Costs and interest

  77. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the 'loser pays' rule generally apply in your jurisdiction?

  78. There is no general rule that costs follow the event in Swiss arbitration law. Depending on the applicable arbitration rules, practice shows that the losing party usually has to bear a percentage and sometimes all of the reasonable arbitration and legal costs and expenses incurred by the other side.

    Compensation for in-house counsel or management time has been granted in a few cases, but this remains a matter of circumstances. 

  79. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  80. Under Swiss law, issues of interest relate to the merits of the case. They are, therefore, to be decided pursuant to the law governing the dispute.

    When Swiss law is the applicable law and the arbitral tribunal grants interest, the award shall indicate for each claim, including for claims for costs, the applicable interest rate and the date from which interest starts to run. As Swiss law allows post award interest, awards issued in Switzerland, in particular for disputes governed by Swiss law, usually specifically award interest until full payment.

    Challenging awards

  81. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  82. Only the violation of fundamental principles of procedural law, due process, or the Swiss legal order may give rise to the setting aside of an award. Article 190(2) PIL Act sets out the limited grounds for this to happen: 

    a) the sole arbitrator was not properly appointed or the arbitral tribunal not properly constituted; 
    b) the arbitral tribunal wrongly accepted or declined jurisdiction; 
    c) the tribunal’s decision went beyond the claim submitted (ultra petita), or it failed to decide one of the claims (infra petita); 
    d) the principle of equal treatment of the parties or their right to be heard in fair adversarial proceedings was not respected; or 
    e) the award is incompatible with public policy (substantive or procedural public policy). 

    The Federal Tribunal has full cognition only in cases relating to the jurisdiction of the arbitral tribunal (article 190(2)(b) PIL Act). It only reviews the findings of facts upon which the award is based where one of the grounds for annulment raised is directed against these findings or when new facts or means of evidence may exceptionally be taken into account in the challenge proceedings (article 99 of the Swiss Federal Tribunal Act). The Federal Tribunal generally does not address the merits of the case except to a very limited extent when it reviews the compatibility of the results of an award with public policy (article 190(2)(e) PIL Act) or, as it has done in recent cases, when considering the alleged violation of a party’s right to be heard in relation to unexpected reasons for the arbitral tribunal’s decision, which the parties had not foreseen and that were not been addressed in the arbitration (article 190(2)(d) PIL Act).

    The first case in which the Federal Tribunal set aside an award on the ground of a violation of substantive public policy was in 2012. The case concerned a worldwide banning of a professional football player for an unlimited period of time because he became unable to settle a large amount of damages awarded against him in favour of his former club. The Federal Tribunal held that the award containing this ruling was incompatible with the individual’s personality rights and the prohibition of excessive commitment guaranteed under article 27 of the Swiss Civil Code and thus incompatible with public policy under article 190(2)(e) PIL Act.

  83. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  84. An award may be revised in cases where it may have been influenced by a criminal action or misdemeanour, or where the applicant subsequently learned of important facts or conclusive new evidence that could not be raised before the issuance of the award and which would have changed its outcome. The PIL Act is silent on this question. The Federal tribunal has held that the conditions to be met for an award to be revised are the same as those applying to its own decisions (article 123 of the Swiss Federal Tribunal Act).

  85. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  86. Exclusion agreements may only occur when none of the parties is domiciled, resident or has a place of business in Switzerland (article 192(1) PIL Act); otherwise, it is not possible to exclude applications to set aside awards. 

    The waiver of article 192(1) PIL Act must be in non-ambiguous terms and in writing. To provide for the award to be “final and binding” in the arbitration clause is not sufficient to constitute a valid exclusion agreement according to case law. The Federal Tribunal has also held that an advance waiver contained in sport federation bylaws cannot be validly raised against athletes in setting aside proceedings even when the formal requirements of article 192(1) PIL Act are met because the athletes’ consent to such a waiver cannot be deemed to have been freely given as they have no choice but to agree to the content of such bylaws if they want to compete. This question remains a topic of much discussion and may not be definitely settled.

    Enforcement in your jurisdiction

  87. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  88. The recognition and enforcement of foreign arbitral awards in Switzerland are governed by the NYC (article 194 PIL Act). Article V(1) NYC sets out the grounds for non-enforcement, which are taken into account only to the extent that they are raised and proven to exist by the party opposing the enforcement of the award. These grounds are interpreted restrictively by Swiss courts, which assume a pro-enforcement stance.

    According to article V(1)(e) NYC, a party can object to the enforcement of a foreign award on the basis that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

    In a recent decision rendered in the context of an application to set aside a CAS award on the ground that it was contrary to public policy (article 190(2)(e) PIL Act) because it did not take into account the outcome of a prior foreign decision that was res judicata, the Federal Tribunal held that in order to make a decision on the ground raised against the award it first had to consider the preliminary question whether this prior decision was capable to have res judicata effect. On this basis, the Federal Tribunal examined whether the foreign decision in question, issued by the Conciliation and Dispute Resolution Commission of the Mexican Football Federation, was rendered (i) between the same parties and on the same subject matter and (ii) was susceptible of recognition in Switzerland pursuant to article 194 PIL Act (which provides for the application of the NYC to all foreign awards, including awards issued in non-member states). Although the first condition was met, the Federal Tribunal took the view that the second condition was not met because the Commission had issued a decision against two coaches without them having had an opportunity to present their case. The Commission’s award could not, therefore, be recognised in Switzerland (article V(2)(b) NYC) and thus could not have any res judicata effect for the CAS panel. Consequently, there had been no violation of public policy and the application to set the CAS award aside was dismissed.

    To our knowledge, the Federal Tribunal has not yet issued any decision regarding an application to enforce an arbitral award that had been set aside in its country of origin. Based on current case law regarding the application and interpretation of article V(1)(e) NYC, it is doubtful that the Federal Tribunal would go as far as allowing the enforcement of an award that was set aside at the seat of the arbitration, unless extraordinary circumstances exist. It is more likely that the Federal Tribunal would consider, as it reaffirmed in recent cases, that the recognition of a foreign award does not aim at attributing to that award in the state where recognition is sought other effects than those existing in its State of origin. 

  89. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  90. Swiss courts have consistently adopted an enforcement-friendly stance, construing the grounds for a refusal to enforce an award narrowly and always by reference to the NYC (article 194 PIL Act).

  91. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  92. Immunity of states or state entities from enforcement is not absolute but limited to what is necessary to protect the exercise of their sovereign powers (iure imperii) in Switzerland.

    Enforcement of foreign awards is generally carried out through attachment proceedings, the award being recognised during the course of the proceedings. The following three cumulative conditions must be met to obtain enforcement over the assets of a state or state entity in Switzerland:

    a) the award relates to a claim arising from a legal relationship which could also be established in the same or similar form between two private parties, the state or the state entity acting like any private party (iure gestionis);

    b) the assets against which enforcement is sought are not dedicated or assigned to sovereign tasks and are not immune from enforcement. If they are affected to sovereign tasks, there must have been an express waiver of immunity by the concerned state or state entity; and

    c) there is a sufficient connection between the act or transaction out of which the claim against the state or state entity arises and Switzerland (so-called “Binnenbeziehung”). Such connection is not considered as given under current case law when the link between the claim and Switzerland consists solely in the location of the debtor’s assets in Switzerland. The fact that the seat of the arbitral tribunal which issued the award was in Switzerland does not constitute a sufficient link either.

    If these conditions are met and enforcement granted, the assets may be seized provided there is no bilateral or other treaty between the concerned state and Switzerland containing specific provisions rendering the assets in question immune from enforcement (eg, article 22 of the 1961 Vienna Convention on Diplomatic Relations).

    Further considerations

  93. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  94. Arbitration is not confidential by law. However, it is considered to be private and should not be publicised. Arbitrators are bound by a general duty of confidentiality with respect to the proceedings, which is implicit in their contract with the parties. This does not, however, apply to the parties themselves or to third parties involved in the arbitration (witnesses or expert-witnesses). It is for the parties to provide for confidentiality in their agreement with third parties or to agree on the general confidentiality of the arbitration, either expressly or by reference to arbitration rules containing confidentiality obligations.

    Swiss counsel have a professional duty of secrecy regarding all aspects of their work, including arbitration. To breach it constitutes a criminal act. 

  95. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  96. Documents do not become confidential by the mere fact that they were produced as evidence in an arbitration. To the extent that the parties did not agree that they should be kept confidential, and provided that they were lawfully obtained, such documents can, in theory, be relied upon in other proceedings. This remains, however, a controversial issue for which specific advice should be sought. In any event, counsel is always subject to the obligation of secrecy discussed in question 47.

  97. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  98. Counsel are bound by the professional rules of conduct governing their profession and by the ethical rules of their bar. The arbitral tribunal’s duty to grant equal treatment to the parties is likely to trigger the application of the stricter of counsels’ differing ethical standards.

    To act as arbitrator is not within the scope of an attorney’s traditional activities according to case law. This could imply that an attorney acting as arbitrator would not be subject to the professional rules applying to attorneys acting as counsel. Such is not the case, however, and in practice attorneys acting as arbitrators do abide to the same rules.

    The distinction between an attorney’s activities as counsel or as arbitrator has been used by certain professional liability insurance companies to exclude such activities from the scope of ordinary insurance policies covering professional liability for attorneys.

  99. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
  100. Swiss law adheres to the principle jura novit curia in international arbitration, allowing the arbitral tribunal to appreciate the legal implications of the facts before them and base its decisions on legal rules other than those invoked by the parties. However, in compliance with the requirements of the parties’ right to be heard in adversarial proceedings, arbitrators must put the legal rules or considerations they may intend to use to the parties before making a decision in all cases where the parties could not reasonably have considered such rules as pertinent to the resolution of the dispute.

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly-asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the 'group of companies doctrine' (or any other basis for piercing the corporate veil) recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the 'loser pays' rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?