Practical Law

It is not news that Europe has been hit hard by soaring energy prices. Power generators that had been shut down during the COVID-19-related economic downturn could not be ramped up in time to meet the increased demand as lockdowns waned. A prior long, cold winter had already depleted the amount of gas in storage, while … Continue reading The winter of our discontent →

It is a trite but a true observation that the flexibility inherent to arbitration proceedings allows parties, tribunals and institutions alike to react swiftly to the challenges faced as a result of the COVID-19 pandemic, by resorting to the tools afforded by technology.

As we discussed in our previous contributions, arbitration can be an interesting dispute resolution mechanism in the context of insolvency proceedings, in particular given the facilitated enforcement of international awards. That said, insolvency proceedings often involve mandatory provisions and the active participation of state courts and public authorities. The state will therefore not necessarily allow … Continue reading Go for broke! Arbitration and insolvency in Switzerland (Chapter 3) →

In our previous contribution, we examined the impact of insolvency proceedings on the validity of arbitration agreements designating Switzerland as the relevant seat. As we saw, such proceedings have no effect on the substantive validity of arbitration agreements. However, this does not necessarily mean that the insolvent party has the capacity to be a party … Continue reading Death of a salesman: arbitration and insolvency in Switzerland (Chapter 2) →

Due to the economic fallout of the COVID-19 pandemic, many economies around the world are facing the risk of a severe recession in 2020, which could involve a wave of corporate bankruptcies. To make matters worse, in a globalised economy, the effects of insolvency proceedings are likely to be felt across multiple jurisdictions. Were such … Continue reading Where credit is due: arbitration and insolvency in Switzerland (Chapter 1) →

As mentioned in our previous contribution, in its report on the outcome of its 38th session in Vienna, the UNCITRAL Working Group III explored areas of potential reforms to the current system of investor-state dispute settlement (ISDS). We have already explored the report’s main findings related to the potential adoption of a standalone appellate mechanism. … Continue reading States of exception: UNCITRAL Working Group III releases its latest report →

The UNCITRAL Working Group III, tasked with examining potential reforms of investor-state dispute settlement (ISDS), recently released its report on the outcome of its resumed 38th session, which took place in Vienna from 20 to 24 January 2020.

States and state enterprises are frequent users of international arbitration. Their involvement is by no means restricted to arbitration under public international law. Indeed, as the ICC Commission on Arbitration and ADR reported in 2017, approximately 10% of ICC arbitrations involve a state or a state entity. That being said, and regardless of the nature … Continue reading The immune system: enforcing arbitral awards in Switzerland (Chapter 5) →

Prevailing in arbitration as well as in subsequent enforcement proceedings in Switzerland will be all for naught if the award debtor is able to frustrate the enforcement of the award (for example, by transferring its assets outside of Switzerland) before the award creditor can satisfy its claim(s).

An (exhausted) award creditor, who prevailed in the arbitration and in any subsequent (Swiss or foreign) setting aside proceedings and who initiated enforcement proceedings in Switzerland, may not be over its troubles just yet.

As we saw in our previous post, Switzerland affords award creditors with a clear legal framework that facilitates the recognition and enforcement of their claims in Switzerland. This legal regime varies depending on whether:

Parties and practitioners know too well that even a favourable arbitral award is of little value until the award debtor complies with it. In cases where the award is not carried out voluntarily, the award creditor will have to take steps to recover its claim(s).

The Swiss Government published on 24 October 2018 the draft bill regarding the revision of its arbitration law, that is, Chapter 12 of the Private International Law Act (PILA). The revision’s stated objectives are to codify the case law of the Swiss Supreme Court, clarify open issues, increase party autonomy, and improve the wording of the … Continue reading Get your Act together: Switzerland to update its arbitration law! →

On 2 October 2018, the European Court of Human Rights (ECtHR) released its long-awaited decision in the Pechstein case. This is the final development in a case that has run through various courts in Switzerland and Germany for almost a decade.

The Swiss Association of Engineers and Architects (SIA) has issued new arbitration rules, replacing the predecessor rules from 1977. The new rules entered into force on 1 January 2018 and apply to all arbitration proceedings under the SIA Rules initiated after 1 January 2018, irrespective of when the parties entered into their arbitration agreement.

On 31 July 2018, the International Chamber of Commerce (ICC) released its full statistical report for 2017. For the first time, the report is available to the public free of charge.

Although located at the heart of Europe, Switzerland is not a member of the European Union. As such, from a Swiss law perspective, EU law is considered as a res inter alios acta (with the exception of the references to EU law contained in the 120 bilateral agreements entered into between Switzerland and the EU, … Continue reading EU-reka! The application of EU law by Swiss-seated arbitral tribunals →

Last month, the Queen Mary University of London issued its eighth empirical survey on international arbitration. This detailed report, made in partnership with White & Case LLP for the fourth time, focuses on the evolution of international arbitration.

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? →

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? →

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 →

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.