Article V(1)(b) of the New York Convention provides that the recognition and enforcement of an arbitral award may be refused if the party against whom the recognition and enforcement of an arbitral award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present its case.

The Swiss Supreme Court rejected the petition of company A to set aside the decision of the Geneva Court of Justice which had confirmed the enforceability of an arbitral award rendered by the arbitral tribunal of the Grain and Feed Trade Association.

The Swiss Supreme Court found all arguments raised by A against the enforceability of the arbitral award to be unfounded. On the subject of Article V(1)(b) of the New York Convention, the Supreme Court stated that the party against whom the recognition and enforcement of an arbitral award is invoked carries the burden of proof for the objection that it was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present its case.

This decision of the Swiss Supreme Court is in line with case-law (see decisions 108 Ib 85 and 110 Ib 191) and legal doctrine. It confirms that the party resisting enforcement under Article V(1)(b) of the New York Convention has the burden of proving the existence of the grounds of refusal it invokes, although this means that this party is asked to prove a negative fact. According to the majority view, in legal commentary, this characteristic feature of the New York Convention is justified in view of the Convention's aim to facilitate the recognition and enforcement of foreign arbitral awards.