The expansion of arbitration towards company law is an obvious reality in light of present developments at an international level, in foreign law and in the practice of certain large companies. The particular problems inherent to company law generate a leverage effect and accentuate the importance of the advantages of this method of dispute settlement. Despite the uncertainties and open questions relating to the formation and scope of arbitration clauses contained in the articles of association, such clauses are likely to become more commonly used. The liberal character of the Swiss law of international arbitration, in general, and the case law of the Swiss Federal Court recognizing that assenting to an arbitration clause contained in a written document must not necessarily itself respect the written form, in particular, confirm the formal validity of an arbitration clause contained in the company’s articles under Swiss law. The potential problem relating to the coordination of the formal validity of such a clause under Section 178(1) PILA and under Section 6(2) Concordat will disappear with the entry into force of the Swiss Code of Civil Procedure, whereby Section 356 will be in line with Section 178(1) PILA. The material validity of an arbitration clause contained in the articles of association must be examined on a case-by-case basis. It is ensured by accurate drafting and taking into account of the specificities of arbitration in company law, namely of the scope of application ratione personae of an arbitration clause contained in the articles, of the limitations on arbitrability of certain disputes and of the potential difficulties that can arise in case of disagreement between coclaimants or co-defendants in relation to the constitution of the arbitral tribunal.
ASA Bulletin