Article 62(2) of the Listing Rules of the Swiss Stock Exchange (Listing Rules) provide that appeals against decisions and preliminary decisions by the Regulatory Board may be lodged with the Appeals Board within 20 trading days of their issue or publication, and that appeals against the decisions of the Appeals Board may, in turn, be lodged with the SIX Swiss Exchange Board of Arbitration within 20 trading days.

Article 9(3) of the Stock Exchange and Securities Trading Act (SESTA) provides that decisions of the SIX Swiss Exchange Appeals Board are to be appealed to a civil court.

As of 1 January 2011, Swiss domestic arbitration proceedings are governed by Articles 353 et seq. of the new Swiss Code on Civil Procedure (CCP). Articles 353 et seq. CCP replaced the Concordat on Arbitration (Concordat), previously governing domestic arbitration proceedings.

The dispute arose between the operator of the Swiss Stock Exchange, SIX Swiss Exchange AG (SIX), and the shareholder of a company which was de-listed from the stock exchange. The shareholder appealed the de-listing decision of the Regulatory Board of the Swiss Stock Exchange to the Appeals Board, which upheld the decision and confirmed the de-listing of the company. After the SIX had refused to enter into an arbitration agreement that had been proposed by the shareholder, the shareholder initiated "arbitration proceedings" with the SIX Swiss Exchange Board of Arbitration (Board of Arbitration), in accordance with Article 62(2) of the Listing Rules (at the time the general terms and conditions of the Stock Exchange).

The SIX objected to the jurisdiction of the Board of Arbitration. After the Board of Arbitration had accepted jurisdiction, which was subsequently upheld by the Appeal Court of the Canton of Zurich, the SIX filed a petition with the Supreme Court and requested that the decision affirming the jurisdiction of the Board of Arbitration be set aside.

The Supreme Court overturned the decision of the Appeal Court of the Canton of Zurich and held that the SIX does not have the legislative power to (unilaterally) provide in its Listing Rules for arbitration proceedings in cases of disputes over listings and de-listings of equity securities.

The Supreme Court first examined the legitimacy and scope of application of Article 62(2) of the Listing Rules. The Supreme Court held that Article 9(3) of the SESTA prevails over Article 62(2) of the Listing Rules. Furthermore, and in any event, the Board of Arbitration constituted under the Listing Rules could not be regarded as a proper arbitration panel because its existence is not based on a private agreement between the parties.

The Supreme Court then turned to the examination of the question of whether or not the parties had entered into a formally valid arbitration agreement. It denied the existence of an arbitration agreement mainly on the ground that the provision of Article 62(2) of the Listing Rules, which are enacted by the SIX, did not constitute an offer by SIX to enter into an agreement to arbitrate. Accordingly, the shareholder's initiation of the arbitration proceedings could not qualify as an acceptance of such an offer. The SIX had explicitly refused to enter into an arbitration agreement when this was proposed by the shareholder, and, given these circumstances, the shareholder could not have assumed that the SIX intended to arbitrate the dispute irrespective of what the SIX had enacted in its Listing Rules. Moreover, even if Article 62(2) of the Listing Rules were considered an offer to arbitrate the dispute, such an offer would have been formally invalid because it was not signed by the SIX.

The decision shows that regulated private bodies, such as stock exchanges, must be very careful in ensuring a proper basis if they intend to provide for arbitration as a dispute resolution mechanism. A possible way to do it is to stipulate an open offer to arbitrate certain disputes in the relevant regulations. That offer can be accepted by third parties (this concept is familiar in the context of bilateral investment treaties (BITs). In the present case, however, no proper basis for arbitration had been provided, and the Supreme Court overturned the jurisdictional decision of the "arbitral tribunal".

As to the form requirements in Swiss domestic arbitration, it is worthwhile mentioning that these have changed since the new CCP came into force on 1 January 2011. Article 358 of the CCP provides that the arbitration agreement must be made in writing or by any other means which permit it to be evidenced by a text, and it thereby abandons the requirement under Article 6(1) of the old Concordat that the arbitration agreement must be signed by the parties. However, although the formal requirements are less strict since the beginning of this year, the circumstances of the present case did not allow for the conclusion that the parties entered into an arbitration agreement. In that regard, the Supreme Court confirmed the obvious, namely that the parties' arbitration agreement is the cornerstone of any arbitration.

4A_533/2010.