The Case for Less Restrictive Form Requirements: Did Switzerland Miss a Chance to Liberalize Its Form Requirement for theArbitration Agreement? - Arbitration: The International Journal of Arbitration, Mediation and Dispute Management View The Case for Less Restrictive Form Requirements: Did Switzerland Miss a Chance to Liberalize Its Form Requirement for theArbitration Agreement? by - Arbitration: The International Journal of Arbitration, Mediation and Dispute Management The Case for Less Restrictive Form Requirements: Did Switzerland Miss a Chance to Liberalize Its Form Requirement for theArbitration Agreement? 87 3

Switzerland’s national arbitration law has recently received a soft makeover. However, the Swiss government initially proposed a more profound change and suggested that Switzerland’s strict form requirements for the agreement to arbitrate should be fundamentally relaxed. This proved too controversial and was subsequently unceremoniously abandoned. Proponents of the current form requirement stressed its benefits, such as its warning function regarding the waiver of one’s access to court, its evidentiary function in proving consent to arbitrate, and its clarifying function in establishing the terms of the arbitration. However, strict form requirements are prone to exclude consensual agreements to arbitrate and are widely considered to be out of step with modern business practices. Given that formal validity is crucial to the recognition of an agreement to arbitrate and to the enforcement of awards internationally, the issue clearly deserves a second look. This article evaluates the benefits of form requirements against their costs and argues that a modern national arbitration law should either abandon form requirements altogether or follow the liberal approach proposed in Option I of the UNCITRAL Model Law 2006.

Arbitration: The International Journal of Arbitration, Mediation and Dispute Management