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 mid-2019 following on from our publication in the Spain Arbitration Review 36/2019.
First, in Decision 4A_306/2019 the Federal Tribunal interpreted an investment treaty’s in order to annul an award that had declined jurisdiction; the Federal Tribunal’s decision is in line with the majority investment treaty decisions.
Second, in Decision, 4A_244/2019 and 4A_246/2019 the Federal Tribunal disallowed new evidence to be provided in order to argue for annulment and also confirmed the res judicata effect of previous decision confirming validity of jurisdictional award.
Third, in Decision 4A_294/2019 the Federal Tribunal made a rare decision to partially annul an award for finding extra petita.
Fourth, in Decision 4A_342/2019 the Federal Tribunal ruled on the applicability of an arbitration agreement to disputes outside the contractual ambit
Fifth in Decision 4A_292/2019 the Federal Tribunal did not find ex-parte communications with a view to constituting the tribunal to be irregular referring to the IBA Guidelines on Conflict of Interest in International Arbitration.
Sixth in Decision 4A_536/2018 the Federal Tribunal elaborates on the extent of the res judicata effect of awards
Seventh, in Decision 4A_636/2018 the Federal Tribunal decided not to extend to the State an arbitration agreement signed by a state-owned entity.
Eighth, in Decision 4A_663/2018 the Federal Tribunal reviewed an award issued by a member of a law firm representing one of the parties; the specific facts were to be analysed in order to determine if there had been a lack of independence and impartiality.
Ninth, in Decision 4A_264/2019 the Federal Tribunal decided on the deadline to challenge an award in view of a supposedly defective notification of the award.
Tenth, in Decision 4A_486/2020, the Federal Tribunal addressed whether a party has a right to a public hearing and the applicability of the ECHR to arbitral proceedings.
Eleventh, in Decision 4A_287/2019, the Federal Tribunal explained that only final decisions can be subject to annulment review, not interim decisions.
Twelfth, in Decision 4A_12/2019 the Federal Tribunal explained that the decision as to whether damages could be awarded in relation to those suffered by a third party was a matter for the merits, not jurisdiction.
Finally, in Decision 4A_114/2020 the Federal Tribunal refers to its flexibility in allowing for the correction of formal mistakes, but does not allow corrections when there has been am abuse.
Iurgium [previously Spain Arbitration Review]