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).
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.
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)
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?
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
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).
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.
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.
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.
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?
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
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
It is not every day that the Geneva-based World Trade Organisation (WTO) can claim a major achievement in global trade.
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?
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
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, 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).
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
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.
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
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?
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 (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
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