As regards the jurisdiction of the arbitral tribunal, the Swiss Supreme Court held that, following the annulment of an award, the same arbitral tribunal remains competent to render a new award (unless the award was set aside because of the irregular constitution of the arbitral tribunal or because the latter wrongly accepted jurisdiction over the dispute). In that context, the Swiss Supreme Court noted that, while it is true that, as a rule, an arbitral tribunal becomes functus officio upon rendering a final award, there is an exception to that principle when an award is annulled. This is so because, once an award is set aside, the situation is in fact the same as that existing just before the notification of the award: the parties are awaiting an award deciding their respective claims and putting an end to the arbitration proceedings. In other words, the arbitral tribunal's mission is not completed yet (or is re-activated because of the annulment of the award).

The Swiss Supreme Court also dismissed the respondent's argument that there is no express provision in Swiss law providing that the same arbitral tribunal remains competent to render a new award. In that context, the Swiss Supreme Court first noted that an express provision is not necessary, given that the arbitrators' mission to decide the dispute is not completed and therefore continues if and when an award is annulled. It then pointed out that such a provision exists for domestic arbitration (namely article 395(2) of the new Swiss Code of Civil Procedure, which replaced a similar provision that already existed in the Concordat Suisse d'arbitrage - which governed domestic arbitration prior to the entry into force of the new Swiss Code of Civil Procedure) and that it is appropriate to apply the same solution to international arbitration.

The court also pointed out that all Swiss academics agree that a tribunal whose award is annulled remains competent to render a new award. Such solution is justified for efficiency reasons: constituting a new arbitral tribunal to rule on a specific issue that was not addressed in the annulled award would not be efficient and would prolong the arbitration proceedings.

In light of the above, the Swiss Supreme Court concluded that the fact that the case was not remanded to the arbitral tribunal in the dispositive part of the decision of 16 May 2011 (which annulled the first award) was not a valid argument to dispute the arbitral tribunal's jurisdiction to render a new award. It further specified that by not including, in the dispositive part of its decision of 16 May 2011, a declaration that the matter was remanded to the same arbitral tribunal, the Swiss Supreme Court simply followed its established practice.

As regards the alleged independence and impartiality of the arbitrators, the Swiss Supreme Court found that this ground was not admissible for the following reasons.

Pursuant to article 180(3) PILA, absent a specific agreement between the parties regarding the procedure for challenging arbitrators (be it directly or by reference to a set of institutional rules), the juge d'appui shall make a final decision on the challenge of an arbitrator. Thus, when a juge d'appui dismisses a challenge against an arbitrator, its decision is final. According to the case law of the Swiss Supreme Court, this means that such decision is not subject to any appeal, either directly (against the decision) or indirectly (through an application to annul a subsequent award on the ground that the arbitral tribunal was constituted irregularly within the meaning of article 190(2)(a) PILA).

By contrast, if the challenge decision is made by a private body (for example, by an arbitral institution in accordance with its rules), the parties may still invoke the lack of independence or impartiality in setting aside proceedings against a subsequent award rendered by the arbitrator(s) whose independence or impartiality was challenged.

The Swiss Supreme Court recognised that its case law on the finality of the decision of the juge d'appui on a challenge was not universally accepted by all Swiss academics. However, it did not consider that there was any reason to modify its case law. In particular, the court stressed that the difference in treatment between a decision on challenge rendered by a juge d'appui (which cannot be reviewed in setting aside proceedings) and that rendered by a private body (which does not prevent a party from invoking the lack of independence or impartiality in setting aside proceedings)made sense. Decisions on a challenge that are made by a private authority need to be subject to review by a state court to make sure that the guarantee of independence and impartiality, which is a cornerstone of the Swiss legal system, is complied with. By contrast, when the decision on challenge is rendered by a juge d'appui, there has already been a judicial review and there is no need for further judicial review on this issue during setting aside proceedings (even more so as efficiency of arbitration proceedings requires that the possibilities to challenge the arbitrators be limited to a minimum).

In this case, the juge d'appui in Geneva had already dismissed a challenge against the tribunal, which was based on the same argument as that put forward in the setting aside proceedings. Therefore, this ground for setting aside was inadmissible.

The respondent contended that, in dismissing its time-bar objection, the arbitral tribunal distorted Swiss law and the parties' contract in such a way that it reached an untenable result, thereby violating substantive public policy within the meaning of article 190(2)(e) PILA.

The Swiss Supreme Court dismissed the argument, noting that the respondent was in fact trying to circumvent the clear case law on public policy. According to this case law, an award is incompatible with public policy only if it disregards essential and largely recognised values which, according to the conceptions prevailing in Switzerland, should constitute the basis of every legal state by the arbitral tribunal. An award rendered in violation of a contractual provision is not contrary to public policy (unless this in itself constitutes a violation of pacta sunt servanda). Thus, even if the arbitral tribunal had wrongly interpreted or applied Swiss law or contractual provisions, this could not have been invoked under the public policy ground pursuant to article 190(2)(e) PILA.