Article 177(1) of the Swiss Federal Statute on Private International Law (PILA) provides that any dispute involving an "economic interest" can be arbitrated.

Article 192 PILA provides the requirements that must be satisfied in order for parties to waive their rights of recourse against an award.

The case arises out of a dispute concerning a trademark licensing agreement between companies X and Y. The agreement provided for arbitration under the WIPO Expedited Arbitration Rules. The seat of arbitration was to be agreed upon by the parties. If no agreement could be reached, arbitration was to take place in Geneva.

X entered a request for arbitration with the WIPO arbitration and mediation centre, claiming that Y had wrongfully terminated the licensing agreement. Around the same time, Y introduced debt collection proceedings against X in Switzerland for unpaid licensing fees. X, having received the order for payment, raised a formal objection. Y then applied to a judge to have the objection provisionally set aside (so-called provisorische Rechtsöffnung or mainlevée provisoire de l'opposition). The judge granted Y's motion.

X appealed this decision to the cantonal court and then to the Swiss Supreme Court, claiming that, in light of the arbitration clause and the pending arbitration proceedings, the judge did not have jurisdiction in the matter.

The Supreme Court rejected X's appeal against the decision of the cantonal court.

The Supreme Court first confirmed its previous case law to the effect that an arbitral tribunal has no jurisdiction to set aside an objection in the context of debt collection proceedings. While there are some types of actions at the threshold between substantive and enforcement proceedings over which an arbitral tribunal may have jurisdiction, this is not the case for the remedy at hand, which falls within the exclusive jurisdiction of state courts. Some isolated authors contend that motions to set aside an objection to an order for payment constitute "disputes involving an economic interest" which, pursuant to Article 177(1) PILA, can be subject to arbitration. However, the overwhelming majority of legal authors reject this position and support the case law of the Supreme Court.

The second argument raised by X was that the existence of an arbitration clause bars the parties from requesting the provisional setting aside of an objection to an order for payment (mainlevée provisoire de l'opposition). In such proceedings, the judge carries out a summary, prima facie examination of the enforceability of a title to a claim, based on strictly limited documentary evidence. If the motion is granted, the creditor may, for example, request a provisional freezing order against the debtor's assets. The debtor whose objection was provisionally set aside will, as a rule, initiate ordinary proceedings before a state court or, where applicable, an arbitral tribunal in order to obtain a judgment or award "negating" the claim. In these proceedings, the claim is subject to a full examination on the merits. The issue is whether an arbitration clause applies only to the latter, ordinary proceedings or whether it may also affect proceedings in which there is a limited examination of the merits of the claim.

The Supreme Court held that parties are entitled to exclude the procedure of mainlevée provisoire de l'opposition in a contractual clause. However, such a clause would be subject, by analogy, to the requirements set out in Article 192 PILA with regard to the waiver of recourse against the award. In particular, the exclusion or waiver must be explicit. Absent such an express provision, the arbitration agreement itself cannot be interpreted as excluding this procedure. Neither could it be argued, in the case at hand, that the WIPO arbitration proceedings initiated by X produce an effect of lis pendens in this regard. The decision on setting aside an objection to an order for payment does not have force of res judicata in relation to the existence of the claim. The two proceedings therefore have different, clearly distinct objects.

The interaction between debt collection proceedings and arbitration proceedings in Switzerland is not always clear. The Swiss Debt Enforcement and Bankruptcy Act provides for a many-tiered procedure, some stages of which are within the jurisdiction of the courts, others of the debt collection authorities. With regard to the former, problems may arise if the parties entered into an arbitration agreement. With this decision, the Supreme Court has clarified that arbitration agreements cannot be interpreted extensively when it comes to the exclusion of debt enforcement proceedings before state courts. In particular, state courts still have jurisdiction to carry out a prima facie examination of the claim in the procedure for the provisional setting aside of an objection to an order for payment, even if there is an arbitration agreement and arbitration proceedings are pending.