International arbitral awards rendered in Switzerland can be challenged before the Swiss Federal Tribunal (Supreme Court) as sole instance if the parties have not validly opted out of the setting aside procedure. Statistical analyses of the pertinent decisions rendered since 1989 were undertaken by Prof. Felix Dasser and his team and published in the ASA Bulletins 2007 and 2010, respectively.
Selected charts have been updated as of end of 2013. On the one hand, they corroborate the arbitration-friendly stance and efficient decision-making by the Federal Tribunal, on the other hand they bear witness to a new phenomenon: repeated challenges of sport arbitration awards, in particular of awards rendered by the Court of Arbitration for Sport (CAS).
The number of cases per year has jumped by a third or more to approx. 35, mainly due to CAS awards.
The average chance of success stands at approx. 7.5%, slightly higher than at the last analysis as of 2009, when it stood at 6.5%. However, for commercial cases, the success rate remains almost flat at 6.88%, while sports cases yield 9.52%. Thus, the last five years yielded five successful challenges of commercial arbitration awards, but seven of sport awards.
Concerning the grounds for setting aside, the last five years saw the first two awards being set aside due to violation of public policy. The chances of a challenge based on this ground remain negligible, though.
Finally, the duration of the proceedings before the Federal Tribunal suggests a new trend. In the past, the trend was towards ever shorter time required between the rendering of an award and the decision of the Federal Tribunal on a challenge, typically around 4 months. Not least due to parties making use of their right to be heard (as defined by the European Court of Human Rights) by filing a reply and rejoinder, respectively, the time needed increased to five to six months (i.e. typically one month for the challenge and four to five months for the subsequent submissions and the rendering of the decision).
In sum, the statistics continue to evidence a very arbitration-friendly and efficient approach by the Swiss judiciary. Arbitral tribunals are kept on a leash, but on an appropriately loose leash.
March 2014, Felix Dasser