Article 190(2) of the Swiss Federal Statute on Private International Law (PILA) permits a final award to be set aside for a limited number of reasons. Under Article 190(2)(d), an award can be set aside if the parties' right to equal treatment or their right to be heard was violated. Under Article 190(2)(e), an award can be set aside if it violates public policy.

X, a Turkish company, and Y, a Polish company, were in dispute over which party was responsible for delays in the execution of contractual work. The dispute was brought before an ICC tribunal seated in Zurich. Each party submitted a technical expert report to the arbitral tribunal concerning the disputed issue.

In an award dated 30 September 2010, the arbitral tribunal dismissed X's claim and, by partially granting Y's counterclaim, ordered X to pay Y EUR 6,587,442.70. In the award, the arbitral tribunal dealt with both parties' expert reports and found that Y's expert report was more persuasive than X's. The tribunal held X responsible for the delays in the execution of the contractual work.

X appealed to the Supreme Court to have the award set aside, arguing that the arbitral tribunal had only dealt with the expert opinion submitted by Y, thereby "completely suppressing" the expert opinion submitted by X. Furthermore, according to X, the arbitral tribunal should have appointed an expert in order for it to receive the sufficient technical expertise necessary for the assessment of the decision-relevant questions. By not doing so, X argued that the arbitral tribunal had violated its right to equal treatment and its right to be heard (Article 190(2)(d), PILA), as well as public policy (Article 190(2)(e), PILA).

The Supreme Court dismissed the appeal.

The Supreme Court noted that during the arbitration, X had submitted its comments on the expert report filed by Y, but had failed to request that the tribunal should appoint a relevant expert to receive the technical expertise necessary for correct assessment of the decision-relevant questions. Confirming its firm practice, the court held that if X, at that time, thought that its right to be heard or its right to equal treatment had been violated, it should have communicated its objection promptly, in order for the tribunal to have a chance to correct any mistake.

The Supreme Court held that X's complaint, that the tribunal only dealt with the expert opinion submitted by Y and thereby "completely suppressed" the expert opinion submitted by X, was unfounded. This was because X admitted before the Supreme Court that the arbitral tribunal (on pages 96-114 of the award) explained in detail why it did not follow the expert opinion submitted by X and gave preference to the opinion submitted by Y.

This decision touches on an interesting question, namely, when is an arbitral tribunal obliged to appoint an expert? In the present case, no decision on this was necessary, since the appeal was rejected because the appellant had not pursued this request in a timely manner during the arbitration. However, it is worth noting that the position of the Supreme Court on this point is clear. The parties have a right to the appointment of an expert by the tribunal (such right being a part of their right to submit evidence and be heard) if all the following preconditions are met:

Where these preconditions are met, and unless its members possess the necessary technical or other special knowledge, an arbitral tribunal violates the right of the parties to be heard if it rejects a request for the appointment of a tribunal-selected expert (shown in the decision of the Supreme Court 102 Ia 493, unpublished note 8, decision 4P 23/1991, dated 25 May 1992, note 5b).

Due to the complexity of the case and the amount in dispute, which exceeded EUR 6 million, the Supreme Court ordered X to pay the court's costs, which amounted to CHF 50,000 and also to pay compensation to Y for its legal fees, a further CHF 50,000. This decision shows that if a party has their complaint dismissed, then the amount due in costs can be substantial when the figure in dispute is high.

4A_617/2010.