The Swiss Chapter is pleased to provide an update on some of the most interesting recent decisions of the Federal Tribunal that have been issued since 2018. For each of the decisions, the contributing authors have included a summary of the facts, the decision and then a brief commentary.
First, in Decision 4A_525/2017, the Federal Tribunal examined an annulment request for an alleged violation of the right to be heard due to the improper application of the law by the tribunal.
Second, in Decision 5A_942/2017 the Federal Tribunal reviewed whether the enforcement of an arbitration award against assets of a foreign State in Switzerland requires a sufficient connection with Switzerland before the New York Convention is applicable.
Third, in Decision 4A_260/2017 the Federal Tribunal ruled upon the independence and impartiality of the Court of Arbitration for Sports (CAS) vis-a-vis the FIFA and also on the FIFA rules on Third Party Ownership.
Fourth, in Decision 4A_508/2017 the Federal Tribunal decided on ultra petita decisions and interpretation of penalty/contractual liability clauses.
Fifth, in Decisions 4_A_396/2017 and 4A_398/2017, the Federal Tribunal examined whether a tribunal constituted under an investment treaty had properly asserted its jurisdiction by examining the question of whether an investment had been made in circumstances where the investment became cross-border further to the incorporation of Crimea into the Russian Federation.
Sixth, in Decision 4A_646/2018, the Federal Tribunal referred to the extension of the arbitration clause to non-signatories where the seat specified in the arbitration agreement was outside of Switzerland.
Seventh, in Decision 4A_432/2017, the Federal Tribunal referred to the rules of interpretation of an arbitration clause.
Eighth, in Decision 4A_125/2018, the compatibility of a success fee arrangement of a lawyer with public policy was examined.
Ninth, in Decision 4A_247/2017, the Federal Tribunal discussed whether foreign decisions which are not enforceable in Switzerland have res judicata effect for an arbitral tribunal seated in Switzerland.
Tenth, in Decision 4A_66/2019, the Federal Tribunal addressed whether an award can be the subject of annulment when not all the possible alternative reasons for a decision are attacked under the right to be heard.
Eleventh, in Decision 4A_314/2017, the Federal Tribunal decided on whether a non-member of a sports federation could invoke the arbitration clause contained in the federation’s statutes.
Twelfth, in Decision 4A_578/2017, the Federal Tribunal examined whether the right to the heard could be violated because evidence was not taken into account in the event the result of the award would not have changed.
Finally, in Decision ECHR 324, it was decided that the proceedings before the CAS are compatible with Article 6 (1) of the ECHR regarding its independence and impartiality; if CAS arbitration was mandatory in practice, the user has the right to a public hearing further to the same provision.
We hope that you find it an interesting read.
Iurgium [previously Spain Arbitration Review]