While arbitration has traditionally been considered as a means of resolving private disputes, it has gradually been gaining ground in the realm of public law. In the past twenty years, there have been examples of the use of domestic arbitration in disputes arising out of contracts involving expropriation, electricity supply or public transport. The trend is however ill-defined as case-law is scarce and legislation unclear. Amongst the concerns raised by the use of arbitration in public law, judicial review is of particular importance. In simple terms, what remedy procedure is to be used against an arbitral award rendered in Swiss public law? The question acquired special relevance with the entry into force on January 1st 2011 of the new Swiss Code of Civil Procedure, which appears to be ambivalent on this issue. The present article strives to find an answer to this question by addressing the various appeals available under Swiss law in the light of both constitutional obligations and standards of the European Court of Human Rights.
ASA Bulletin