May arbitral jurisdiction apply to culpa in contrahendo actions, if parties have merely exchanged drafts of a contract which encompasses an arbitration agreement? From a Swiss legal perspective – as a rule – the exchange of drafts of contracts does not bind the parties due to lack of intention to be bound (“Rechtsfolgewillen”). However, in exceptional constellations the mutual will of parties to conclude an arbitration agreement and thus to regulate the dispute resolution mechanism exists prior to the conclusion of the substantive contract. In our view, exceptions may be justified if (i) there is a usage among the parties to always conclude the same arbitration agreement, (ii) there are perceptible interests of both parties to conclude an arbitration agreement prior to the substantive contract (e.g. neutrality of the forum, common language, expert arbitrator, etc.), (iii) there is evidence for a mutual will to conclude an arbitration agreement prior to the substantive contract (e.g. “mark-up” comment which confirms arbitration agreement). In such constellations arbitral jurisdiction may be accepted for culpa in contrahendo actions.
ASA Bulletin