The winter of our discontent
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
Plenty of phish in the sea: cybersecurity and the revised IBA Rules on Evidence
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.
Go for broke! Arbitration and insolvency in Switzerland (Chapter 3)
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)
Death of a salesman: arbitration and insolvency in Switzerland (Chapter 2)
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)
Where credit is due: arbitration and insolvency in Switzerland (Chapter 1)
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)
States of exception: UNCITRAL Working Group III releases its latest report
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
An appealing reform? 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.
The immune system: enforcing arbitral awards in Switzerland (Chapter 5)
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)
Mr Freeze: enforcing arbitral awards in Switzerland (Chapter 4)
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).
Don’t stop me now! Enforcing arbitral awards in Switzerland (Chapter 3)
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.
Oh, happy payday! Enforcing arbitral awards in Switzerland (Chapter 2)
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:
For a few Swiss francs more: enforcing arbitral awards in Switzerland (Chapter 1)
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).
Anti-suit injunctions in international arbitration: the Swiss approach (Part 2/2)
After focusing on the conditions for obtaining an anti-suit injunction from an arbitral tribunal under Swiss law in Part 1, this second blog will discuss how Swiss courts deal (or should deal) with anti-suit injunctions in support of arbitration.
Anti-suit injunctions in international arbitration: the Swiss approach (Part 1/2)
Introductory remarks Anti-suit injunctions may take different forms: for example, a party may seek an injunction from an arbitral tribunal to prevent or restrain another party from commencing or continuing competing proceedings in national courts in breach of an arbitration agreement; a party may also seek an injunction from a court at the seat of … Continue reading Anti-suit injunctions in international arbitration: the Swiss approach (Part 1/2)
Definition of an “investment” in treaty cases: the Swiss Supreme Court moves in the right direction
What standard of review should the Swiss Supreme Court apply when seised with a challenge to an award on jurisdiction in an investment treaty dispute and, more specifically, when it has to review the findings of the arbitral tribunal regarding the definition of an investment?
Get your Act together: Switzerland to update its arbitration law!
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!
Blade runner: new developments in Pechstein’s judicial marathon
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 architects of change: the Swiss Association of Engineers and Architects’ revised arbitration rules
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.
Please, take a seat: Switzerland among users’ preferred choices according to ICC statistics
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.
EU-reka! The application of EU law by Swiss-seated arbitral tribunals
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
2018 Queen Mary International Arbitration Survey: nihil novi sub sole?
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.
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?
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?
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
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).
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.
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.
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.
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?
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
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
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.
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?
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
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.
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).
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
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.
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
Can arbitration answer the particular needs of professionals in the field of commodity trading and shipping? A Swiss perspective
Users in the field of commodity trading and shipping are willing to have their dispute settled through a resolution process that is in line with their way of conducting business. Can arbitration in Switzerland answer these particular needs?
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.
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
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