Arbitral tribunals with seat in Switzerland are required to apply EU law under various conditions: It seems fairly clear that the arbitral tribunal needs to apply EU law, if the parties have chosen the law of an EU member state as lex causae, as EU law forms in this case part of the chosen law. The same applies when the parties have forgone to make a choice of law and the closest connection test results in the application of the law of an EU member state. In case the parties have chosen a third state’s law as lex causae, the arbitral tribunal needs to consider EU law, if a party invokes its application. Last, the arbitral tribunal may in some instances apply EU law ex officio, even if none of the parties have invoked the application of EU law.
Although the arbitral tribunal may be required to apply EU law, the failure to apply or the wrong application of EU law does not necessarily result in setting aside of the award by the Swiss Federal Supreme Court. The failure to apply or the wrong application of EU law does not violate public policy. Hence, a challenge of the arbitral award based on art. 190 (2) e PILA will be unsuccessful. This holds also true if the arbitral tribunal decides not to apply EU competition law, as the Swiss Federal Supreme Court does not consider EU competition law part of public policy. The failure to apply EU law by the arbitral tribunal will only then result in a successful challenge of the arbitral award based on art. 190 (2) b PILA, if the arbitral tribunal found that EU law would be applicable to the dispute but denies its jurisdiction to decide the EU law issue.ASA Bulletin