The dispute over trademark exploitation rights arose between the Dutch company Y BV (Y) and X SA (X), a company based in Switzerland.

On 17 June 2010, the sole arbitrator of the WIPO Arbitration and Mediation Center rendered a final award. At Y's request, the arbitrator subsequently issued a memorandum of rectification to correct a calculation error. In a separate decision, X's request for an additional award was rejected.

In the corrected version of the final award, Y was ordered to indemnify X, among other things, for abusive termination of the contract. In return, several orders were imposed on X accompanied by penalty payments of EUR2,500 per day in case of delayed execution of the orders. Furthermore, X was ordered to pay Y a certain amount plus contractual interest of 4% per year for the exploitation of the trademark in 2008 and 2009.

On 23 August 2010, X brought a petition before the Supreme Court asking for the setting aside of parts of the rectified final award and of the decision refusing its request for an additional award.

The Supreme Court rejected the petition.

On the issue of admissibility, the Supreme Court stated for the first time that it had jurisdiction over a petition requesting the setting aside of a decision which denied a request for an additional award. It did so by relying on case law on the admissibility of petitions against rectified judgments and declared that this applied mutatis mutandis to decisions on requests for an additional award. Therefore, the Supreme Court has jurisdiction over such decisions no matter whether the request for an additional award was admitted or rejected.

On the substance, the Supreme Court recalled its case law according to which the arbitral tribunal does not decide ultra or extra petita (that is, does not go beyond what was sought by the claimant or grant relief different from that sought) if it grants less than the total amount which the party had requested even if it values certain elements differently or grants them based on a different legal reasoning. In this case, the arbitrator had not exceeded his jurisdiction nor treated the parties unequally by ordering X to pay interest on the amount it owed Y but not vice versa, despite the fact that neither of the parties had formally requested the payment of interest. The Supreme Court considered the different treatment justified because Y had formally requested the payment of "at least" a certain amount and had asked for interest payments in its submission, whereas X had only formally requested a fixed amount and had not mentioned the payment of interest.

The Supreme Court also rejected X's argument that per diem penalty payments were contrary to public policy when the arbitral award was still subject to appeal. The Supreme Court dismissed this argument by means of reference to the WIPO Expedited Arbitration Rules which state in article 57(b) that the award shall be effective and binding on the parties as from the date it is communicated.

In this decision, which will be published in the official case reporter, the Supreme Court confirms that when deciding whether an arbitral tribunal has decided ultra or extra petita it does not only take into account what the parties formally requested but also the reasoning contained in their briefs. However, the arbitral tribunal is bound by the formal requests if they are limited to a fixed amount.

4A_440/2010.