Recent Swiss Developments on Exclusion Agreements - Chapter 6 - International Arbitration and Public Policy

Author(s):

Laurent Lévy

Tetiana Bersheda

Page Count:

20 pages

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Published:

October, 2014

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Originally from International Arbitration and Public Policy

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I. INTRODUCTION

In 2005, the Swiss Federal Court handed down its first decision

admitting the validity of an exclusion agreement, i.e. an agreement

whereby the parties partly or totally exclude the grounds for setting

aside an award. In the following years, the Federal judges issued a

number of judgments dealing with the limits of the admissibility of an

exclusion agreement, which will be examined in the present article.

Under Swiss law, an exclusion agreement is governed by Article

192 of the Swiss Federal Private International Law Act of 18

December 1987 (“PILA”), which has the following wording:

1. Where neither of the parties has its domicile, its habitual
residence, or a place of business in Switzerland, the parties
may, by an express statement in the arbitration agreement or
by a subsequent agreement in writing, exclude all setting-aside
proceedings; the parties may as well only provide for such an
exclusion limited to one or several of the grounds listed in
Article 190(2).

2. Where the parties have excluded all setting-aside proceedings
and where an award is to be enforced in Switzerland, the New
York Convention of 10 June 1958 on the Recognition and
Enforcement of Foreign Arbitral Awards applies by analogy.

One of the reasons why the Swiss law of international arbitration

is generally characterized as “arbitration-friendly” is the wide

recognition of the final nature of arbitral awards and an extremely

limited review by national judges of international awards rendered in