Post-Hearing Issues In International Arbitration - Chapter 4 - Exclusion of Annulment Action in Switzerland
Laurent Hirsch is a founding partner of Hirsch Kobel, a Geneva boutique law firm. He advises and represents companies before arbitral tribunals in international commercial disputes, and also serves as an arbitrator. Whether in arbitration or for transactional purposes, his practice extends to all fields of business law. In recent years, Laurent Hirsch advised companies involved in M&A transactions and negotiated and drafted on a regular basis patent licensing agreements in the pharmaceutical and medical devices industries. When assisting clients, Laurent Hirsch carefully avoids resorting to ready-made recipes and strives to find tailor-made solutions matching client's needs and interests as closely as possible. Laurent Hirsch is member of various professional and arbitration bodies: Geneva Bar Association (member of the Continuing Legal Education Committee) and Swiss Bar Association, ASA (co-leader of the ASA local Geneva group), IBA, LCIA and CIArb (Fellow). Laurent Hirsch publishes regularly on arbitration topics. He is a member of the international arbitration editorial group of the International Business Law Journal (IBLJ) and a co-editor responsible for international arbitration in the Swiss electronic law review Jusletter. He is an organizer of, and speaker at, arbitration conferences. He is fluent in French and English and has good knowledge of German.
Originally from: Post-Hearing Issues in International Arbitration
I. INTRODUCTION
Several arbitration laws allow foreign parties to provide for the exclusion of any appeal against an arbitral award rendered in international commercial arbitration, in particular Sweden, France and Belgium. The corresponding legal provisions have received limited attention and have not been extensively tested before the courts of those countries.
Since 1989, Swiss law allows foreign parties to provide for the exclusion of any appeal against an arbitral award. In 2005, the Swiss Supreme Court found an exclusion clause to be effective and declined to consider an annulment action. Since then, the Swiss Supreme Court found exclusion clauses to be effective in some seven cases and brought some more light on how this provision should be applied.
It might be interesting to review the matter in light of the most recent cases and to examine how Swiss law regulates this exclusion issue.
Part II: Annulment, Appeal and Standard of Review
Chapter 4
Exclusion of Annulment Action in Switzerland
Laurent Hirsch
I. Introduction
II. Scope of Appeal Exclusion Allowed by Swiss Law
A. Annulment Action in Switzerland: Article 190 Swiss PIL Act
B. Exclusion of Annulment Action: Article 192 Swiss PIL Act
1. Foreign Parties
2. Full Exclusion of Partial Exclusion
3. Express Statement
4. Time of the Exclusion Agreement
C. Jurisdiction
D. Consequences
E. Other Options Open
F. Appeal Exclusion in Litigation before Court Cases
G. Other National Laws
III. Cases Addressing Possible Exclusion
A. Earlier Cases Between 1989 and 2004
1. First Case in 1990
2. Further Cases Between 1991 and 2004
3. Interim Conclusion of those Earlier Cases
B. The First Application in the Landmark February 2005 Case
1. Facts of the Case
2. Decision of the Arbitral Tribunal
3. Annulment Action Before the Swiss Supreme Court
C. Subsequent Cases (2005-2012)
1. Cases Where the Exclusion was Effective
2. Cases were the Exclusion was Denied
3. Other Cases
D. Interim Conclusion
IV. Construction of exclusion agreements
A. Law Applicable to the Exclusion Agreement
B. No Need to be Specific
C. Clear Wording will bring the Desired Result
D. Non-Signatory Parties
1. Appellant Signatory Challenging Extension to Non-Signatory
2. Appellant Non-Signatory Challenging Extension to Itself
E. Reference to Arbitration Rules cannot Constitute an Effective Exclusion Agreement
F. Seat of the Arbitral Tribunal Fixed After the Alleged Exclusion
V. Scope and Effects of Exclusion
A. Full Exclusion
B. Waiver of Exclusion
C. Partial Exclusion
D. Unilateral Exclusion
E. Exclusion of Revision?
F. Scope of Exclusion in Connection with Correction
G. Enforcement in Switzerland
H. European Convention on Human Rights
I. Sports Arbitration
J. Legislative Changes
VI. Proceedings before the Swiss Supreme Court
A. Exchange of Memorials on the Issue
B. Factual Inquiry About the Intent of the Parties
C. Costs
D. Confidentiality
VII. Consequences for Practitioners
A. Drafting the Arbitration Clause
B. Initiating Arbitration Proceedings
C. Filing an Annulment Action
D. Should Annulment Action be Excluded or Not?