The Swiss Chapter is pleased to provide summaries and commentaries of selected recent decisions of the Swiss Federal Tribunal that have been issued between July 2023 and August 2024.
First, in three separate decisions but linked by the same underlying dispute and facts, the Federal Tribunal confirms its jurisprudence according to which the validity of the arbitration agreement can be and is to be assessed separately from the validity of the main contract (Decision 4A_148/2023, dated 04.09.2023) and that an arbitration agreement can bind third parties that have not signed it or were not mentioned in said agreement (4A_144/2023 and 4A_146/2023, also dated 04.09.2023).
Second, in Decision 4A_338/2023 (21.12.2023), the Federal Tribunal concludes that FIFA’s practice not to pay its share of the advance on costs in CAS proceedings does not constitute a violation of public policy or of the equality of the parties.
Third, in Decision 4A_172/2023 (11.01.2024), the Federal Tribunal confirms its restrictive interpretation of an arbitration agreement included in a Bilateral Investment Treaty between Singapore and China.
Fourth, in Decision 4A_430/2023 (23.02.2024), the Federal Tribunal delves into the interpretation of a choice of forum clause in a football player’s employment contract, emphasising that FIFA does not have an absolute authority on employment matters and thus must decline its jurisdiction in case the parties have agreed on another forum (local Hungarian courts in the present case).
Fifth, in Decision 4A_244/2023 (03.04.2024), a widely commented decision considering its relevance in the investment arbitration field, the Federal Tribunal confirms the jurisdiction of arbitral tribunals seated in Switzerland to resolve intra-EU investment disputes, criticizing the well-known Achmea and Komstroy decisions of the European Court of Justice.
Sixth, in Decision 4A_486/2023 (26.04.2024), which concludes a 9-year saga between Clorox and Venezuela in Switzerland, the Federal Tribunal rejects the request to set aside the final award on the merits on the basis of violation of public policy, confirming its long-standing approach of not reviewing the substance of the dispute submitted before the arbitral tribunal.
Finally, in Decisions 4A_288/2023 and 4A_572/2023 (both dated 11.06.2024), the Federal Tribunal rejects two requests for revision of the same interim award following the replacement by the ICC of the chair and a co-arbitrator considering that the facts upon which the challenges were admitted occurred after the rendering of the interim award.
Iurgium [previously Spain Arbitration Review]