The Swiss Chapter is pleased to provide summaries and commentaries of selected recent decisions of the Swiss Federal Tribunal that have been issued between January 2022 and August 2023.
First, Decision 4A_404/2021 (24.01.2022) confirms that, formal errors in the designation of a party may be corrected by the arbitral tribunal and that an arbitrator should only be challenged when there is a legal mandate or a long-standing legal services relationship between the arbitrator (or a member of the arbitrator’s law firm) and one of the parties to the arbitration.
Second, in Decision 4A_398/2021 (20.05.2022), in relation to an investment treaty arbitration, the Federal Tribunal drew the line between legitimate nationality planning and an abusive procedure constituting an abuse of right, notably by clarifying the criteria of a foreseeable dispute.
Third, in Decision 4A_69/2022 (23.09.2022), the Federal Tribunal delimited the scope and requisites of a request for revision; issued a reminder on the conditions for the admissibility of new evidence; and clarified that an arbitral tribunal is not bound by the findings of a criminal court (local or foreign) when deciding on corruption allegations.
Fourth, in Decision 4A_232/2022 (22.12.2022), the Federal Tribunal clarified the requirement for qualifying as an “arbitral tribunal”, stating that decisions by non-arbitral disciplinary bodies cannot be reviewed by the Federal Tribunal, in this particular case a decision rendered by the Anti-Doping Division of the Court of Arbitration for Sport.
Fifth, in Decision 5A_406/2022 (17.03.2023), the Federal Tribunal clarified that an arbitral award rendered under the ICSID convention (in this case against Spain) does not require exequatur for enforcement. Then, considering that there was no “sufficient link” to Switzerland – a necessary condition for enforcement according to Swiss procedural law – it nevertheless rejected the request for attachment of assets.
Sixth, in Decision 4A_41/2023 (12.05.2023), the Federal Tribunal rejected the request to set aside a rabbinic arbitral award that did not contain any reasoning on the basis that the parties had agreed to such procedure and therefore the review before the Federal Tribunal was “inaccessible”.
Seventh, Decision 4A_100/2023 (22.06.2023) where the Federal Tribunal annuls, a rare occasion, the arbitral award, confirming the scope of the arbitrator’s duty of disclosure and reminding that the parties have a “duty of curiosity”, which they need to proactively demonstrate in order to benefit from Article 190(2)(a) PILA.
Finally, Decision 4A_575/2022 (07.08.2023) confirms that, in cases of state succession, it is possible to determine whether a State is bound by an arbitration agreement taken over from its former State by looking at the factual elements of the case, without regard for international public law principles.
Iurgium [previously Spain Arbitration Review]