The Swiss Private International Law Act (the “PIL Act”) directs Swiss courts to dismiss for lack of jurisdiction any case where an arbitral tribunal assumes jurisdiction (Art. 7).
A motion is pending before the Swiss Parliament to add a Subsection 2 to PIL Act Article 7 to provide that Swiss courts must defer their jurisdictional decision until the arbitral tribunal has decided on its own jurisdiction or, it should be added, if it cannot be appointed within a reasonable time.
This amendment is justified because the jurisdiction of the courts is displaced if, and only if, an arbitral tribunal assumes jurisdiction over the case. Therefore, the court’s jurisdictional decision, which has res judicata effect, may not be based on a prima facie review of the alleged arbitration agreement, or even on an in abstracto review of the jurisdiction of a hypothetical arbitral tribunal by the court.ASA Bulletin