The Changing Legal Landscape of Arbitration in Switzerland


In summary

This article touches on the 2021 changes to Switzerland's international arbitration law and the Swiss Rules of International Arbitration. The legislative revisions to Chapter 12 of the Swiss Private International Law Act reinforce party autonomy and codify important Federal Supreme Court decisions. The new Swiss Rules are expected to strengthen the Swiss Arbitration Centre’s position domestically, and give it more visibility internationally. These much-awaited reforms reinforce Switzerland's position as an arbitration-friendly jurisdiction with an increasingly globally oriented outlook.


Discussion points

  • Clarification of nexus to Switzerland
  • Formalities for valid arbitration agreements
  • Enhanced judicial support for arbitration
  • Strengthened role of the Swiss Arbitration Centre
  • Facilitation of paperless submissions and remote hearings
  • More detailed provisions on multiparty and multi-contract arbitration
  • Appointment of arbitrators and arbitrators’ authority to reject counsel appointments

Referenced in this article

  • Chapter 12 of the Federal Act on Private International Law
  • Swiss Rules of International Arbitration 2021
  • Swiss Arbitration Association (ASA)
  • Swiss Federal Supreme Court
  • Swiss Rules of Mediation 2021

Introduction

In recent months, Switzerland has welcomed several arbitration-related reforms that seek to reinforce its role as a leading arbitration centre during a time of intense changes in the global market and on the international arbitration stage. The much-awaited reform of the Swiss law on international arbitration (ie, Chapter 12 of the Federal Act on Private International Law (Swiss PILA)), the revision of the Swiss Rules of International Arbitration (Swiss Rules 2021), and the transition of the Swiss Chambers’ Arbitration Institution (SCAI) into the Swiss Arbitration Centre Ltd (Swiss Arbitration Centre) will propel Switzerland into the future.

Switzerland’s revised arbitration law

The original Chapter 12 of the Swiss PILA, in force as of 18 December 1987, contained 19 provisions and was considered one of the most succinct and flexible national arbitration laws. The success of this law contributed to Switzerland being hailed as one of the most arbitration-friendly jurisdictions on an international level.

The recent revision of Chapter 12 of the Swiss PILA has been almost 12 years in the making. It started in 2008 when the Swiss parliament was first invited to address international arbitration, which put the topic of a possible revision of international arbitration in Switzerland on the map.[1] Almost five years later, in 2013, the Swiss Arbitration Association (ASA) suggested a ‘toilettage’ or ‘gentle revision’ of the arbitration legislation.[2]

On 11 January 2017, the Swiss Federal Council published for public consultation a draft bill containing proposed amendments to Chapter 12 of the Swiss PILA which aimed to modernise the legislation and codify jurisprudence of the Swiss Federal Supreme Court.[3] After several rounds of public consultations with various arbitration institutions, law associations and law faculties, on 24 October 2018, the Swiss Federal Council published a report[4] as well as an updated draft bill.[5] In May 2019, the Committee for Legal Affairs of the Swiss Federal Council heard from experts, as part of a discussion on entering the bill into law.[6] The Swiss parliament approved the final draft bill for the revision of Chapter 12 of the Swiss PILA on 19 June 2020.

The legislation, in effect as of 1 January 2021, now includes 24 provisions and Swiss lawmakers appear to have been disinclined to deviate from the original blueprint. The revised legislation maintains the staples of arbitration in Switzerland, including the role of the Swiss Federal Supreme Court as a single instance for setting aside proceedings as well as minimal regulatory intervention to reinforce and promote the principle of party autonomy.

The legislation is largely self-contained and certain references to the Swiss Civil Procedure Code (CPC) that were previously included have now been replaced by corresponding provisions in the PILA itself. The most notable changes to the law address, inter alia: the scope of its application, formal requirements for a valid arbitration agreement, default procedure for the appointment and replacement of arbitrators, codified obligation for parties to give prompt notice of a procedural violation, assistance from Swiss courts in support of arbitration, and codified legal remedies against arbitral awards.

Clarified scope of application

Article 176(1) of the Swiss PILA has been amended to expressly provide that Chapter 12 of the Swiss PILA will apply to any arbitration if the seat of the arbitration is in Switzerland and if, at the time when the arbitration agreement was entered into, at least one of the parties had neither its domicile, its habitual residence nor its corporate seat in Switzerland. This revision serves to dispel the confusion caused by a 2002 decision of the Swiss Federal Supreme Court, according to which the application of Chapter 12 of the Swiss PILA was said to depend on the domicile or seat of the parties involved in the arbitration proceedings at the time of commencement of the arbitration.[7]

Different forms of valid arbitration agreements

The new article 178(1) of the Swiss PILA stipulates that an arbitration agreement is valid if made in writing or in any other means of communication allowing it to be evidenced by text. The revised wording clarifies that all forms of modern communication, for example, emails, are valid means to prove the existence of an arbitration agreement.

Further to the above, the new article 178(4) of the Swiss PILA now provides that an arbi­tration agreement may be included in articles of association or unilateral legal acts, such as trust deeds or testamentary dispositions. This is expected to have a positive impact on the number of trust and shareholder arbitrations seated in Switzerland.

Appointment, challenge and removal of arbitrators

The former article 179(2) of the Swiss PILA provided that in cases where the parties had not specified a procedure for the appointment of arbitrators, the Swiss court at the seat of the arbitration applying the provisions of the CPC appointed the arbitrators. However, said article did not account for cases where the arbitration agreement did not designate an arbitral seat. As a result, the former article 176(3) of the Swiss PILA would apply, thus creating a catch-22 situation where the arbitrators, who are yet to be appointed, are to determine the seat of the arbitration.

The updated article 179 of the Swiss PILA now contains specific provisions on the appointment of arbitrators. It stipulates that arbitrators are to be appointed or replaced in accordance with the parties’ agreement and, unless the parties decide otherwise, there will be a three-member tribunal (with each party appointing a co-arbitrator and the two co-arbitrators appointing a presiding arbitrator). If the parties fail to agree on the constitution of the arbitral tribunal or if the arbitrators cannot be appointed for any other reason, the Swiss courts at the seat of the arbitration will have jurisdiction to assist the parties. If the parties have not determined the place of the arbitration or have agreed that the seat will be in Switzerland, the Swiss court which is seized first will be competent to appoint the arbitrator or arbitrators. This revised provision reflects Switzerland’s general reputation and recognition of an arbitration-friendly jurisdiction and will be of particular use in ad hoc arbitrations where parties struggle to appoint a tribunal and have not agreed on the seat of arbitration.

Article 179(6) of the Swiss PILA also now codifies the arbitrator’s duty to disclose without delay any facts that could raise legitimate doubts as to their independence or impartiality, throughout the arbitration and until the proceedings are closed. Article 180 of the Swiss PILA in turn lays out the grounds for challenging an arbitrator, including circumstances that give rise to justifiable doubts as to the arbitrator’s independence or impartiality, under article 180(1)(c) of the Swiss PILA. These changes to both article 179 and article 180 reflect the Swiss Federal Supreme Court’s jurisprudence that arbitrators must follow the standards of independence and impartiality adhered to by Swiss court judges.[8]

In turn, the newly introduced article 180a of the Swiss PILA stipulates the procedure for challenging a member of the arbitral tribunal, unless the parties have agreed otherwise. According to this new provision, an application to challenge an arbitrator should be made to the arbitral tribunal within 30 days following the discovery of the grounds for such a challenge and within 30 days of the application, the challenging party may request the Swiss courts at the seat of the arbitration to remove the challenged arbitrator. This decision by the Swiss court would be final and cannot be appealed. Indeed, in contradistinction to the former provision regarding challenges, which obliged the parties to notify the arbitral tribunal and the opposing party without delay,[9] article 180a provides for a specific time limit of 30 days.

Finally, the revised Chapter 12 of the Swiss PILA makes provision for the removal of arbitrators. According to the new article 180b of the Swiss PILA, an arbitrator may be removed either by agreement of the parties or unilaterally, by application of one party to the Swiss courts, when an arbitrator is unable to perform his or her duties within a reasonable time or with due diligence.

Procedural objections

The amended Chapter 12 of the Swiss PILA now expressly states, under article 182(4), that a party that fails to raise an objection regarding an alleged violation of procedural rules which it knew or, exercising due diligence, ought to have known, may not subsequently raise such an objection. This is in line with jurisprudence by the Swiss Federal Supreme Court regarding the principle of good faith.[10] According to the rule of ‘raise it or waive it’, a party must state its objection clearly and repeatedly at the risk of otherwise waiving its right to rely on such alleged procedural irregularity as a basis for challenging a later award.[11]

Swiss court assistance

The revised provisions of Chapter 12 of the Swiss PILA aim to make assistance by Swiss courts more widely available to both parties and arbitral tribunals, seated in Switzerland and abroad.

The new article 183(2) of the Swiss PILA stipulates that, if a party does not voluntarily comply with an order issued by the arbitral tribunal, either the arbitral tribunal or the opposing party may request the assistance of Swiss courts.[12]

In a similar vein, article 184(2) of the Swiss PILA empowers both the arbitral tribunal and the parties to request the assistance of the court at the seat of the arbitration for the taking of evidence. The new provision now extends the right of assistance directly to the parties themselves, thus providing them the freedom to act independently of the arbitral tribunal, when they require assistance.

The new article 185a of the Swiss PILA grants both arbitral tribunals and the parties to arbitral proceedings seated outside of Switzerland the same right of access to, and assistance from, Swiss courts. It provides that an arbitral tribunal seated abroad, or a party involved in foreign arbitral proceedings may request the assistance of the Swiss courts at the place where an interim or conservatory measure is to be enforced. At the same time, an arbitration seated abroad, or a party involved in foreign arbitral proceedings may, with the consent of the arbitral tribunal, request the assistance of the Swiss courts where the taking of evidence is to take place.

It remains to be seen how Swiss courts will interpret and apply these provisions, especially with respect to the issue of document production in international arbitration.

Remedies against arbitral awards

The revised provisions of Chapter 12 of the Swiss PILA provide both clarifications as to any challenge that may be brought against arbitral awards and now make express reference to the additional remedies of correction, interpretation, and amendment of an award, and revision. These additional remedies are separate from the grounds for setting aside an arbitral award and codify the practice of the Swiss Federal Supreme Court.

Challenges against arbitral awards continue to be predicated on very limited grounds. The new article 190(4) of the Swiss PILA provides that an application to set aside must be filed within 30 days following notification of the final award.[13] In addition, article 191 of the Swiss PILA in conjunction with article 77 of the Swiss Federal Tribunal Act of 2005 (SFT) now clarifies that an arbitral award may be challenged before the Swiss Federal Supreme Court irrespective of the amount in dispute, that is, irrespective of whether the amount in dispute is lower than 30,000 Swiss francs as per article 74 of the SFT.

Under the newly adopted article 189a of the Swiss PILA, parties may submit a request for correction, interpretation, or amendment before the arbitral tribunal within 30 days of notification of the arbitral award. This provision codifies the case law of the Swiss Federal Supreme Court, which allows for the correction, interpretation or amendment of arbitral awards. One should be alive to the fact that this provision may not be used to request a ‘revision au fond’, but may rather be used when one seeks to correct computational, clerical, printing or similar errors contained in the arbitral award, to have individual parts of the operative part of the decision interpreted, or to seek an additional award on claims that were raised in the course of the arbitration but not decided in the operative part of the award. Notably, the 30-day time limit to file an application for annulment is not suspended by an application for correction, interpretation, or addition. For a party to effectively challenge an award and to preserve all rights, it might be necessary to simultaneously file an application for annulment.

Furthermore, the new article 190a of the Swiss PILA codifies the remedy for parties to seek the revision of an arbitral award when (1) the requesting party subsequently discovers relevant facts or conclusive evidence that it was unable to invoke in earlier proceedings despite having acted with all due diligence;[14] (2) criminal proceedings have established that the award was influenced, to the detriment of the challenging party, by a crime or misdemeanour; (3) despite having exercised due diligence, a ground for challenge under article 180(1)(c) of the Swiss PILA is only discovered after the conclusion of the arbitration and there are no means of recourse available. The application for revision must be made within 90 days of discovery of the ground and generally within 10 years of notification of the arbitral award. The addition of article 190a of the Swiss PILA codifies and expands upon what had thus far been Swiss Federal Supreme Court jurisprudence. The authors recall the 2020 decision, where the Swiss Supreme Court admitted a request for revision and annulled a CAS award on the ground that there were justifiable doubts as to the impartiality of the presiding arbitrator.[15]

With respect to arbitration-related proceedings before the Swiss Federal Supreme Court, pursuant to article 77(2)-bis of the SFT, parties may now file their submissions in English,[16] as opposed to the previous requirement that parties file their submissions in one of the four official languages of Switzerland: French, German, Italian or Romansh. However, it is noted that, even if arbitration-related submissions are filed in English, the Swiss Federal Supreme Court will render its decision in one of the four official languages of Switzerland.

The revised Swiss Rules of International Arbitration

Through the collaborative efforts of ASA and the Swiss Chambers of Commerce, the former SCAI acquired a new name as well as a new set of rules. The revised Swiss Rules of International Arbitration entered into force on 1 June 2021. Apart from certain linguistic improvements, as well as other minor adjustments and updates, the Swiss Rules 2021 ushered in key changes regarding multiparty and multi-contract proceedings as well as several amendments aiming to streamline arbitration proceedings through paperless filings and remote hearings.

In addition, most recently, the Swiss Arbitration Centre endorsed the online Arbitration Toolbox, which was developed by ASA, and which aims to familiarise users and practitioners alike with key features of international commercial arbitration proceedings.[17] The Arbitration Toolbox serves to guide the user through the arbitration process with the help of a questionnaire, which alerts the user to any issues worthy of consideration and flags strategic decisions. The Swiss Arbitration Centre also encourages users to refer to ASA Profiles, an online database of Swiss and international arbitration specialists, which provides information on the legal background, language, nationality, etc of any given counsel, expert or arbitrator, to facilitate the selection process.[18]

The most noteworthy changes introduced by the Swiss Rules 2021 are summarised in the following.

Strengthened function of the institution

One of the most notable additions to the Swiss Rules 2021 comes in the form of new article 5 of the Swiss Rules regarding the gatekeeper function to the Court of the Swiss Arbitration Centre (Court).[19]

Former article 3(12) of the Swiss Rules 2012 provided that if the respondent did not submit an answer to the notice of arbitration, or if the respondent raised an objection to the arbitration being administered under the Swiss Rules, the Court could administer the case, unless there was manifestly no agreement to arbitrate referring to these Rules.

Under the Swiss Rules 2021, article 5(1) spells out the standard of review applied by the Court regarding the prima facie jurisdiction of the arbitral tribunal where (1) there is no answer to the notice of arbitration; (2) the respondent raises an objection with respect to the arbitration being administered under the Swiss Rules; or (3) one of the parties raises any other jurisdictional objections, including that claims made under more than one arbitration agreement may not be determined together. The Court’s decision to proceed with claims is made without prejudice to the arbitral tribunal’s power to render any decision as provided for in article 23 of the Swiss Rules 2021.

The Swiss Rules 2021 also contain a presumption in favour of the commencement and continuation of proceedings in the case of recalcitrant respondents as well as jurisdictional and other objections, unless it is determined by the Court that there is manifestly no arbitration agreement referring to the Swiss Rules; or where claims are made under more than one arbitration agreement and the said agreements are manifestly incompatible.[20] The subsequent determination on such issues remains with the arbitral tribunal, once constituted.

Another rule that seeks to enhance the Swiss Arbitration Centre’s involvement is article 16(2) of the Swiss Rules 2021, which provides that the Secretariat of the Swiss Arbitration Centre (Secretariat) should receive electronic copies of all communications between the parties and the arbitral tribunal. In addition, service of awards shall be the responsibility of the Secretariat, and not of the arbitrators. Article 34(5) of the Swiss Rules 2021 now provides that originals of an award signed by the arbitrators will be notified by the Secretariat to the parties, provided that the costs have been paid in full.

Paperless submissions and remote hearings

The new Swiss Rules take an important step toward streamlining paperless filings and communications by eliminating the need to submit hard copies of the notice of arbitration and of the answer thereto. Under the new article 3(1) and 4(1) of the Swiss Rules 2021, parties may choose to submit their notice of arbitration or answer via electronic means only. Considering the difficulties that often accompany the attempts to communicate with parties that do not wish to be reached as well as the significant costs and environmental impact related to courier services, it is to be hoped that the exclusive use of electronic submissions will become more widespread among arbitral institutions and arbitral tribunals alike.

Similarly, article 27 of the Swiss Rules 2021 now refers to hearings ‘held in person or remotely by videoconference or other appropriate means’, thus accommodating the most recent trend, necessitated by the covid-19 pandemic, of having hearings held remotely. The prior version of the Swiss Rules already stipulated (and this provision still survives under article 27(5) of the Swiss Rules 2021) that witnesses and experts could be examined via videoconference. The additions to article 27 of the Swiss Rules will serve to minimise the risk of challenges against arbitral tribunals that choose to hold remote hearings and to thwart parties’ attempts to obstruct the proceedings by insisting on in-person hearings during times when such are not possible or would be overly burdensome. Other institutional rules have introduced similar provisions,[21] thus ushering in a post-pandemic arbitration landscape, where remote hearings serve to minimise both the costs as well as the environmental footprint of an arbitration.

Cybersecurity and data protection

Issues of cybersecurity and data protection have been at the forefront of discussions in the international arbitration community in recent years.[22] Following the European Union’s General Data Protection Regulation (GDPR), arbitral institutions have sought to provide practical guidance on how to integrate data protection in the arbitral process.[23] Further attempts to clarify the situation have been made through the release of the IBA Cybersecurity Guidelines, the ICC-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration, as well as the ICCA-IBA Roadmap to Data Protection in International Arbitration.[24]

Article 19(2) of the Swiss Rules 2021 now provides that as soon as practicable after receiving the file from the Secretariat, the arbitral tribunal should hold an initial conference with the parties to discuss the organisation of the arbitration proceedings, including issues of data protection and cybersecurity to the extent needed to ensure an appropriate level of compliance and security.

Multiparty and multi-contract arbitrations

The revised Swiss Rules 2021 contain significantly more detailed provisions on the issue of multi-contract and multiparty arbitration compared to the previous edition of the rules.

Article 6(1) of the Swiss Rules 2021 introduces the discussion of cross-claims which includes a claim by an existing party against another existing party which does not qualify as a claim made in the notice of arbitration or counterclaim in the answer to the notice of arbitration.

On the matter of joinder, article 6(3) and (4) of the Swiss Rules 2021 maintains the liberal approach of article 4(2) of the Swiss Rules 2012, being much more broadly worded provisions than some other institutional rules.[25] Indeed, under the Swiss Rules 2021, the arbitral tribunal has broad discretion to decide, after consulting with all parties and taking into account all relevant circumstances, whether it shall allow a cross-claim, a request for joinder or request for intervention, or a request by a third party to participate in the arbitration.[26]

With respect to consolidation, article 7 of the Swiss Rules 2021 replaces article 4(1) of the Swiss Rules 2012, and aside from linguistic changes now clarifies that the Court will not consolidate sua sponte, but rather upon request of a party.

As for additional forms of third-party participation, article 6(4) of the Swiss Rules 2021 provides that, where a third person requests or is requested by a party to participate in the arbitration proceedings in a capacity other than an additional party, the arbitral tribunal, after consulting with all parties and the third person, shall decide on whether to permit such participation and on its modalities, considering all relevant circumstances. The provision does not limit the types of permissible participation mechanisms and would, in principle, accommodate the participation of persons, such as shareholders.

Appointment of arbitrators

Article 11 of the Swiss Rules 2012 remained largely unchanged with the 2021 revision. Except for some minor linguistic changes, its most significant change pertains to article 11(4) of the Swiss Rules 2021.

Said provision now dispenses with the 30-day time limit that would be set by the Court for claimants to designate an arbitrator and the subsequent 30-day period for respondents. Article 11(4) of the Swiss Rules 2021 now simply provides that ‘the Court shall set a time limit for the Claimant and for the Respondent (or group of parties) to each designate an arbitrator.’ This is expected to significantly reduce the waiting time for the constitution of the arbitral tribunal, by allowing the Court to determine, based on its discretion, the reasonable time limit for the parties to designate their arbitrators considering the circumstances of each case.

Furthermore, article 11(5) of the Swiss Rules 2021 was clarified to state that the Court may appoint some or all of the arbitrators. This provision ensures party equality in the process of designating arbitrators in multiparty proceedings.

Arbitrators’ authority to reject the appointment of new counsel

Article 16(4) of the Swiss Rules 2021 introduces two changes with respect to party representation under arbitrations administered by the Swiss Arbitration Centre. First, it codifies a rather common practice in international arbitration, allowing either the arbitral tribunal or the institution to request proof of authority of a representative at any time during the proceedings. Second, it now recognises the arbitral tribunal’s power to limit a party’s right to representation.[27] Said provision expressly authorises the arbitral tribunal to oppose the appointment of a new representative, where this would risk jeopardising the tribunal’s impartiality or independence. This will allow arbitral tribunals to take a more proactive stance in resisting possible obstructionist tactics employed by parties.

Options for other alternative dispute resolution mechanisms

In addition to acting as a settlement facilitator with the agreement of each of the parties pursuant to article 19(5) of the Swiss Rules 2021,[28] under article 19(6) of the Swiss Rules 2021, the parties may agree to mediation including under the Swiss Rules of Mediation or any other forms of alternative dispute resolution. While the option for alternative forms of dispute resolution within the arbitral proceedings has always been available, an express reference in the Swiss Rules themselves may serve to encourage parties and arbitral tribunals to consider these approaches and enhances the visibility of the Swiss Rules of Mediation, which were revised as recently as 2021 to reflect best practice.

The future of arbitration in Switzerland

With the recent revisions to Chapter 12 of the Swiss PILA, the Swiss parliament has proven once again its interest in maintaining Switzerland as an arbitration-friendly jurisdiction by seeking to strengthen party autonomy and procedural efficiency, as well as to showcase its increasingly globally oriented outlook. The collaboration between ASA and the Swiss Arbitration Centre is expected to strengthen the latter’s position domestically, as well as provide it with more visibility at an international level. Overall, the introduction of the revised Swiss PILA as well as the revised Swiss Rules 2021 will continue to modernise the arbitration scene in Switzerland and secure Switzerland’s position at the forefront of international arbitration.

Swiss Federal Act on Private International Law – Chapter 12 comparison table

As of 1 January 1987As of 1 January 2021
Article 176: Scope of Application–Seat of the Arbitral TribunalArticle 176: Scope of Application–Seat of the Arbitral Tribunal
Article 177: ArbitrabilityArticle 177: Arbitrability
Article 178: Arbitration AgreementArticle 178: Arbitration Agreement and Arbitration Clause
Article 179: Arbitral tribunal – constitution of the arbitral tribunalArticle 179: Appointment and Replacement
Article 180: Arbitral tribunal – challenge to an arbitratorArticle 180: Challenge – Grounds
Article 181: Lis PendensArticle 180a: Challenge – Procedure
Article 182: Procedure – principleArticle 180b: Challenge – Removal
Article 183: Procedure – provisional and conservatory measuresArticle 181: Lis Pendens
Article 184: Procedure – taking of evidenceArticle 182: Procedure – Principle
Article 185: Procedure – further assistance of the state court judgeArticle 183: Procedure – Provisional and conservatory measures
Article 186: JurisdictionArticle 184: Procedure – taking of evidence
Article 187: Decision on the merits – applicable lawArticle 185: Procedure – other cases of judicial assistance
Article 188: Decision on the merits – partial awardArticle 185a: Judicial assistance in support of foreign arbitrations
Article 189: Decision on the merits – arbitral awardArticle 186: Jurisdiction
Article 190: Finality, Challenge – principleArticle 187: Applicable Law
Article 191: Finality, Challenge – competent judicial authorityArticle 188: Partial Award
Article 192: Waiver of annulmentArticle 189: Procedure and form
Article 193: Deposit and certificate of enforceabilityArticle 189a: Correction and interpretation of the award; and supplemental award
Article 194: Foreign arbitral awardsArticle 190: Finality, Challenge, Revision – Challenge
 Article 190a: Finality, Challenge, Revision – Revision
 Article 191: Finality, Challenge, Revision – judicial authority for recourse
 Article 192: Waiver of Recourse
 Article 193: Deposit and certificate of enforceability
 Article 194: Foreign arbitral awards

Swiss Rules of International Arbitration comparison table

Swiss Arbitration Rules 2012Swiss Arbitration Rules 2020
Model Arbitration Clause IntroductionModel Arbitration Clause Introduction
Section I – Introductory RulesSection I – Introductory Rules
Article 1: Scope of applicationArticle 1: Scope of application
Article 2: Notice, calculation of periods of timeArticle 2: Notice, calculation of time limits
Article 3: Notice of Arbitration and Answer to the Notice of ArbitrationArticle 3: Notice of Arbitration
Article 4: Consolidation and joinderArticle 4: Answer to the Notice of Arbitration
 Article 5: Administration of claims
 Article 6: Cross-claim, joinder, intervention
 Article 7: Consolidation
Section II – Composition of the Arbitral TribunalSection II – Composition of the Arbitral Tribunal
Article 5: Confirmation of arbitratorsArticle 8: Confirmation of arbitrators
Article 6: Number of arbitratorsArticle 9: Number of arbitrators
Article 7: Appointment of a sole arbitratorArticle 10: Appointment of a sole arbitrator
Article 8: Appointment of arbitrators in bi-party or multi-party proceedingsArticle 11: Appointment of arbitrators
Article 9: Independence and challenge of arbitratorsArticle 12: Independence and disclosures of arbitrators
Article 10: Independence and challenge of arbitratorsArticle 13: Challenge of arbitrators
Article 11: Independence and challenge of arbitratorsArticle 14: Removal of an arbitrator
Article 12: Removal of an arbitratorArticle 15: Replacement of an arbitrator
Article 13: Replacement of an arbitrator 
Article 14: Replacement of an arbitrator 
Section III – Arbitral ProceedingsSection III – Arbitration Proceedings
Article 15: General ProvisionsArticle 16: General provisions
Article 16: Sear of the arbitrationArticle 17: Seat of the arbitration
Article 17: LanguageArticle 18: Language
Article 18: Statement of ClaimArticle 19: Organisation and conduct of the proceedings
Article 19: Statement of DefenceArticle 20: Statement of Claim
Section III – Arbitral ProceedingsSection III – Arbitration Proceedings
Article 20: Amendments to the Claim or DefenceArticle 21: Statement of Defence
Article 21: Objections to the jurisdiction of the arbitral tribunalArticle 22: Amendments to the Claim or Defence
Article 22: Further written statementsArticle 23: Objections to the jurisdiction of the arbitral tribunal
Article 23: Periods of timeArticle 24: Further written submissions
Article 24: Evidence and hearingsArticle 25: Time limits
Article 25: Evidence and hearingsArticle 26: Evidence
Article 26: Interim measures of protectionArticle 27: Hearings
Article 27: Tribunal-appointed expertsArticle 28: Tribunal-appointed experts
Article 28: DefaultArticle 29: Interim measures
Article 29: Closure of proceedingsArticle 30: Default
Article 30: Waiver of rulesArticle 31: Closure of proceedings
Section IV – The AwardSection IV – The Award
Article 31: DecisionsArticle 33: Decisions
Article 32: Form and effect of the awardArticle 34: Form and effect of the award
Article 33: Applicable law, amiable compositeurArticle 35: Applicable law, ex aequo et bono
Article 34: Settlement or other grounds for terminationArticle 36: Settlement or other grounds for termination
Article 35: Interpretation of the awardArticle 37: Interpretation or correction of the award, additional award
Article 36: Correction of the awardArticle 38: Determination of costs
Article 37: Additional awardArticle 39: Fees and expenses of arbitrators
Article 38: CostsArticle 40: Allocation of costs
Article 39: CostsArticle 41: Deposit of costs
Article 40: Costs 
Article 41: Deposit of Costs 
Section V – Other ProvisionsSection V – Other Provisions
Article 42: Expedited procedureArticle 42: Expedited procedure
Article 43: Emergency reliefArticle 43: Emergency relief
Article 44: ConfidentialityArticle 44: Confidentiality
Section V – Other ProvisionsSection V – Other Provisions
Article 45: Exclusion of liabilityArticle 45: Exclusion of liability
APPENDIX A: Offices and Bank Account

of the Secretariat of the Arbitration Court

APPENDIX A: Offices and Bank Account of the Secretariat of the Arbitration Court
APPENDIX B: Schedule of CostsAPPENDIX B: Schedule of Costs

Notes

[1] Dasser, The Revised Swiss Lex Arbitri: A Story of Two Dozen Jewels, in: Scherer (ed.), ASA Bulletin 2020, p. 791.

[2] Ibid.

[3] See Swiss Federal Council, Erläuternder Bericht zur Änderung des Bundesgesetzes über das Internationale Privatrecht (Internationale Schiedsgerichtsbarkeit) vom 11. Januar 2017.

[4] See Swiss Federal Council, Message concernant la modification de la loi fédérale sur le droit international privé (Chapitre 12: Arbitrage international) de 24 octobre 2018, available at: https://www.fedlex.admin.ch/eli/fga/2018/2548/fr.

[5] See Swiss Federal Council, Loi fédérale sur le droit international privé (LDIP) de 24 octobre 2018, available at: https://www.fedlex.admin.ch/eli/fga/2018/2549/fr.

[6] Amtl. Bull. 2019 N. 2406.

[7] See BGer 4P.54/2002.

[8] See BGer 4A_620/2012.

[9] Orelli, Chapter 2, Part II: Commentary on Chapter 12 PILS, Article 180 [Arbitral tribunal: challenge to an arbitrator], in: Arroyo (ed.), Arbitration in Switzerland. The Practitioner’s Guide, 2nd ed. 2018, p. 123.

[10] Berger/Kellerhals, International and Domestic Arbitration in Switzerland, 3rd ed. 2015, p. 404.

[11] See BGer 4A_407/2012 paras. 3.2.2 et seq.

[12] See Habbeger, Das Parlament verabschiedet die Revision von Kapitel 12 IPRG mit einem Feinschliff, in: Scherer (ed.), ASA Bulletin 2020, p. 559.

[13] See Berger/Kellerhals, International and Domestic Arbitration in Switzerland, 3rd ed. 2015, para. 1503; BGer 4P.273/1999.

[14] Article 190a of the Swiss PILA expressly provides that this provision does not apply to facts or evidence that came into existence after the award was issued.

[15] BGer 4A_318/2020.

[16] See Habbeger, Das Parlament verabschiedet die Revision von Kapitel 12 IPRG mit einem Feinschliff, in: Scherer (ed.), ASA Bulletin 2020, p. 565.

[17] The Arbitration Toolbox is available at https://toolbox-int.arbitration-ch.org/toolbox/home.

[18] ASA Profiles is available at https://profiles.swissarbitration.org.

[19] See, eg, article 6 ICC Rules 2021.

[20] See, also, article 10(c) ICC Rules 2021 and article 17(3) DIS Rules 2018.

[21] See also article 19.2 LCIA Rules 2020, which now provides that ‘a hearing may take place in person, or virtually by conference call, videoconference or using other communications technology with participants in one or more geographical places (or in a combined form)’ as well as article 26(1) ICC Rules 2021, which provides that ‘[t]he arbitral tribunal may decide, after consulting the parties, and on the basis of the relevant facts and circumstances of the case, that any hearing will be conducted by physical attendance or remotely by videoconference . . .’.

[22] See Rosenthal, Complying with the General Data Protection Regulation (GDPR) in International Arbitration – Practical Guidance, in: Scherer (ed.) ASA Bulletin 2019, p. 822–852.

[23] See, eg, ICC, Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration (2021), available at: https://iccwbo.org/content/uploads/sites/3/2020/12/icc-note-to-parties-and-arbitral-tribunals-on-the-conduct-of-arbitration-english-2021.pdf.

[24] See Born, International Commercial Arbitration, 3rd ed. 2021, p. 229.

[25] See articles 46 WIPO Arbitration Rules 2021; article 7(5) ICC Rules 2021; article 22.1(x) LCIA Rules 2020; article 7 SIAC Rules 2016.

[26] Schramm, Chapter 3, Part II: Commentary on the Swiss Rules, Article 4 [Consolidation and joinder], in: Arroyo (ed.), Arbitration in Switzerland. The Practitioner’s Guide, 2nd ed. 2018, p. 491.

[27] Article 17(2) ICC Rules 2021 as well as article 18.3 and 18.4 LCIA Rules 2021 contain a similar provision, while article 23(2) SIAC Rules 2016 and article 13(7) HKIAC Rules 2018 provide that the parties should immediately inform the tribunal of any change in their representation.

[28] Article 19(5) Swiss Rules 2021 replaces article 15(8) Swiss Rules 2012. See generally, Stutzer, Settlement Facilitation: Does the Arbitrator have a Role? The ‘Referentenaudienz’ – the ‘Zurich-Way’ of settling the Case, in Scherer (ed.), ASA Bulletin 2017, pp. 589–608.

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