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Swiss Supreme Court rendered 52 arbitration cases in 2010
Practical Law UK Legal Update 7-508-7933 (Approx. 3 pages)
Swiss Supreme Court rendered 52 arbitration cases in 2010
by Practical Law
| Published on 06 Oct 2011 • Switzerland |
PD Dr. Nathalie Voser (Partner) and Pierre Ducret LL.M (Associate), Schellenberg Wittmer (Zurich/Geneva)
A recently published German-language article gives a useful and detailed account of all arbitration matters which were decided by the Swiss Supreme Court in 2010.
The article (Diana Akikol, Die bundesgerichtliche Rechtsprechung zur Schiedsgerichtsbarkeit im Jahr 2010, in Jusletter, 8 August 2011 (Jusletter subscription required)) underlines the growing number of appeals against awards rendered by arbitration tribunals in international arbitration cases. Of the 52 cases decided in 2010, 37 related to international arbitration, 18 of which were rendered in French, 16 in German and three in Italian.
As in previous years, the importance of sports arbitration in Swiss arbitration practice is reflected by the large number of appeals made against Court of Arbitration for Sport (CAS) awards (more than half of these appeals related to doping or other disciplinary sanctions).
Article 190(2) of the Swiss Private International Law Act (PILA) permits a final award to be set aside on appeal for a limited number of reasons. The most frequently named reasons for setting aside a final award were:
- The alleged violation of public policy (Article 190(2)(e) PILA) (19 cases).
- The alleged violation of the right to be heard (Article 190(2)(d) PILA) (17 cases).
- The alleged lack of the arbitral tribunal's jurisdiction (Article 190(2)(b) PILA) (six cases).
- The allegedly improper constitution of the arbitral tribunal (Article 190(2)(a) PILA) (five cases).
- Awards allegedly being ultra or infra petita (Article 190(2)(c) PILA) (four cases).
- The alleged violation of equal treatment (Article 190(2)(d) PILA) (three cases).
The success rate for setting aside proceedings continues to be very low: only three out of the 37 appeals before the Swiss Supreme Court in 2010 were successful, namely:
- Case 4A_490/2009 rendered on 13 April 2010, regarding the violation of formal public policy (see Legal update, Swiss Federal Tribunal sets aside CAS award for violation of procedural public policy).
- Case 4A_456/2009 rendered on 3 May 2010, concerning jurisdiction (see Legal update, Swiss Federal Tribunal sets aside CAS award for lack of jurisdiction) .
- Case 4A_433/2009 rendered on 26 May 2010, regarding the right to be heard (see Legal update, Swiss Supreme Court sets aside arbitral award based on a violation of the right to be heard).
This demonstrates that the Supreme Court, in continuing its tradition, will only interfere with arbitral awards in exceptional cases.