- April 13, 2018
The CJEU decision in Slovak Republic v Achmea: what opportunities for Switzerland?
On 6 March 2018, the Court of Justice of the European Union (CJEU) rendered its much-awaited decision in Slovak Republic v Achmea BV, in which it held that the arbitration clause contained in Article 8 of the Netherlands-Slovakia bilateral investment treaty (BIT), and those contained in other intra-EU BITs in general, was incompatible with EU … Continue reading The CJEU decision in Slovak Republic v Achmea: what opportunities for Switzerland? →
- February 14, 2018
WTO appellate body: can arbitration break the current deadlock?
The dispute settlement system of the World Trade Organisation (WTO) is often referred to as the crown jewel of the multilateral trading system established by that institution. Over 500 disputes have been brought to the WTO since its beginning in 1995. Key to this success is the role played by the Appellate Body, a permanent … Continue reading WTO appellate body: can arbitration break the current deadlock? →
- January 16, 2018
Looking back on 2017: spotlight on arbitral secretaries
While the involvement of arbitral secretaries has become common practice, a number of practitioners have, over the past few years, voiced concerns regarding their precise role and functions. There is a fear that arbitral secretaries may, in some cases, essentially become a “fourth arbitrator” by taking over tasks that must necessarily be assumed by arbitrators. … Continue reading Looking back on 2017: spotlight on arbitral secretaries →
- December 19, 2017
Price review arbitration in long-term energy contracts: the power of arbitral tribunals to modify the terms of a contract under Swiss law
Clauses of indexation, price-revision and hardship Long-term energy contracts typically contain a formula for calculating the price throughout the life of the contract, usually by reference to market factors (notably the market price of crude oil in long-term gas supply contracts).
- October 19, 2017
Definition of “investment”: an intriguing obiter dictum of the Swiss Supreme Court with unknown consequences
A few months ago, Naomi Briercliffe (a talented former colleague of mine) and Stephanie Grace Hawes posted on this blog a very interesting and thought-provoking analysis of what they consider to be the most appropriate standard of review when jurisdictional challenges to investment treaty awards are filed before national courts.
- September 19, 2017
ICCA-Queen Mary Taskforce: draft report on third party funding in international arbitration
On 1 September 2017, the joint ICCA-Queen Mary Taskforce issued its draft report on third party funding in international arbitration. The Taskforce was composed of experienced practitioners and academics from over 20 different jurisdictions.
- July 17, 2017
Introducing English as a possible language in setting aside proceedings before the Swiss Supreme Court: an amendment in peril?
On 11 January 2017, the Swiss government released for public consultation its draft bill on the revision of Chapter 12 of the Swiss Private International Law Act (PILA), which governs international arbitration proceedings in Switzerland. The consultation period ended on 31 May 2017.
- June 15, 2017
EU-Singapore Free Trade Agreement: did the European Court of Justice put the final nail in the coffin of ISDS?
The European Union (EU) and Singapore concluded negotiations for a free trade agreement (FTA) in June 2015. This agreement is one of the first “new-generation” FTAs, that is to say, a trade agreement which contains, in addition to the classical provisions on the reduction of customs duties and non-tariff barriers to trade in goods and … Continue reading EU-Singapore Free Trade Agreement: did the European Court of Justice put the final nail in the coffin of ISDS? →
- May 16, 2017
Sales contract, contract for works or “innominate” contract? Why characterising (properly) a contract matters under Swiss law
Swiss law is one of the most frequently chosen governing laws in international contracts. As such, it is important for parties to arbitration proceedings where Swiss law has been chosen as the governing law of their contractual relationship to understand the framework of Swiss contract law. More particularly, it is crucial for those parties to understand why characterising … Continue reading Sales contract, contract for works or “innominate” contract? Why characterising (properly) a contract matters under Swiss law →
- April 18, 2017
Foreign investment in Africa at the heart of the Geneva Talks
On 29 March 2017, the Geneva Talks on Foreign Investment in Africa took place in Geneva. Organised twice a year by the University of Geneva in collaboration with the University of Lausanne, this series of talks discusses issues related to the promotion and protection of foreign investment in Africa. This spring’s talks considered the rise … Continue reading Foreign investment in Africa at the heart of the Geneva Talks →
- March 14, 2017
Long awaited trade facilitation agreement enters into force at the World Trade Organisation
It is not every day that the Geneva-based World Trade Organisation (WTO) can claim a major achievement in global trade.
- February 20, 2017
Introducing English as a possible language in setting-aside proceedings before the Swiss Supreme Court: a good idea?
On 11 January 2017, the Swiss government released its long-awaited draft bill on the revision of Chapter 12 of the Swiss Private International Law Act for public consultation. It governs international arbitration proceedings in Switzerland. The draft bill is intended to adapt the existing law to align it with case law developed by the Swiss Supreme … Continue reading Introducing English as a possible language in setting-aside proceedings before the Swiss Supreme Court: a good idea? →
- January 17, 2017
Using the discounted cash flow method when assessing a potentially recoverable loss under Swiss law
The “discounted cash flow” (DCF) method has increasingly widespread application, notably to compute damages claims. Its purpose is to determine the value of a business or an investment by projecting the anticipated future cash flow before discounting it back to present value (at a specific discount rate). In other words, the DCF method puts a present … Continue reading Using the discounted cash flow method when assessing a potentially recoverable loss under Swiss law →
- November 10, 2016
Creation of a Global Arbitration Ethics Council: the Swiss Arbitration Association declares that time has not yet come
In September 2014, the President of the Swiss Arbitration Association (ASA) called for the creation of a Global Arbitration Ethics Council, a truly transnational body, to whom matters of alleged unethical conduct would be referred.
- October 17, 2016
Expert determination versus arbitration: the Swiss approach
Expert determination, which has gained popularity in recent years as a faster and less formal alternative to arbitration, is an important element of dispute resolution in Switzerland (and elsewhere).
- August 9, 2016
Rio 2016 Olympics: no time for a real warm up for the CAS ad hoc Division
Legal disputes arising during Olympic Games (including, amongst others, eligibility, disciplinary or doping-related disputes) are decided by a temporary “office” of the Court of Arbitration for Sport (CAS), referred to as the CAS ad hoc Division. The CAS ad hoc Division has operated at each edition of the Summer and Winter Olympic Games since 1996, … Continue reading Rio 2016 Olympics: no time for a real warm up for the CAS ad hoc Division →
- July 19, 2016
Arbitration, human rights and due process: recent developments in Switzerland
In Switzerland, the relationship between international arbitration law and human rights has attracted a growing amount of interest over the past few years. However, in practice, human rights issues have been relatively slow to arise in the international arbitration context.
- June 13, 2016
International arbitration and insolvency: the Swiss position in a nutshell
As a result of the globalised nature of commercial business, the effects of insolvencies are felt across multiple jurisdictions. Further, the interaction between arbitration and insolvency law has been increasing constantly since the last decade, where a considerable number of companies have faced the wind chill of recession. It is against that background that we … Continue reading International arbitration and insolvency: the Swiss position in a nutshell →
- April 18, 2016
Navigating the pitfalls of multi-tier arbitration clauses: the Swiss Supreme Court (finally) completes the circle
Multi-tier arbitration clauses are commonly found in commercial contracts. In the interest of reducing the costs of resolving a dispute, it is indeed increasingly common for parties to require an obligation to negotiate, explore possibilities of reaching an amicable settlement, or conduct a conciliation, mediation or adjudication, before commencing arbitration.
- March 16, 2016
Third-party funding: a Swiss law perspective
Third-party funding (TPF) has attracted a great deal of attention over the last decade in numerous jurisdictions, including in Switzerland. TPF arrangements are usually motivated by a party’s lack of the necessary funds to commence arbitration proceedings or its desire to outsource the costs of the arbitration and any associated financial risks. The third-party funder … Continue reading Third-party funding: a Swiss law perspective →
- February 16, 2016
Seeking a second bite at the apple in setting aside proceedings: Swiss Supreme Court voices concern and sets the record straight
An oft-cited advantage of arbitration is the finality of the process: arbitration is a one-stop dispute resolution mechanism, subject to the (usually) limited grounds under which an award may be challenged at the seat of the arbitration. The attractiveness (and suitability) of a country as a seat for international arbitration depends, amongst other things, on … Continue reading Seeking a second bite at the apple in setting aside proceedings: Swiss Supreme Court voices concern and sets the record straight →