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The European Arbitration Review 2019 - Switzerland

21.11.2018 -

The long-standing arbitration-friendliness of Switzerland is well known. This is reflected in its laws (the Swiss Private International Law Act, currently under revision, being the most relevant example), but also in the reports of arbitral institutions which demonstrate its ongoing popularity as a seat: Geneva and Zurich together are second only to Paris in the 2017 International Chamber of Commerce Court case statistics. Swiss arbitrators are the third- most appointed (after the United Kingdom and France) when it comes to nationality (and first on a per capita basis), and Swiss law among the top four chosen laws on the merits.

In assessing the desirability of an arbitral seat, however, other highly salient factors are too often overlooked. These factors directly affect parties’ interests, not only to a fair, efficient and cost-effective arbitral process. Once a (hopefully favourable) arbitral award is obtained, the hurdles that can stand in the way of its enforcement become the primary concern. The time taken for appeals to run their course – to a true final result – can at times erode the value of the award itself. Moreover, the uncertainty associated with the likelihood that the award will be set aside also stands in the way of finality. A high degree of certainty in an arbitral award’s ultimate enforcement, and the expectation that it can be enforced without undue delay thereby increase the value of the end-to-end dispute resolution process.

In order to assess how well a given jurisdiction fares not only with respect to the support of a nascent or ongoing arbitral process (such as the availability and willingness of judges to assist with document production orders, and the like), it is necessary to take a close look at what happens after the award is rendered.

Felix Dasser and his research assistants have been doing this for some time. The most recent update by Dasser and Piotr Wójtowicz analyses data on challenges of Swiss arbitral awards as of 2017. Their approach analyses three different data samples of decisions rendered by the Swiss Federal Court, the sole and final appeal instance for awards subject to Swiss lex arbitri. The first (and largest) sample concerns challenges of international arbitral awards pursuant to article 190(2) of the Swiss Private International Law Act (PILA). The second looks at request for revision of international arbitral awards, and the third focuses on challenges to domestic arbitral awards pursuant to article 389 et seqq of the Swiss Code of Civil Procedure (CCP) (which entered into force on 1 January 2011). A summary of Dasser and Wójtowicz’s analysis is outlined below...

This is an extract from the 2019 edition of GAR’s The European Arbitration Review, first published in November 2018. The whole publication is available here or you may find it in the below PDF. 

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