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Switzerland / 18 December 2014 / Switzerland, Bundesgericht (Federal Tribunal) / A. v. Bank B.B. / 5A_467/2014
Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 18 December 2014 Parties A. v. Bank B.B. Case number 5A_467/2014 Applicable NYC Provisions IV | IV(1) | IV(1)(a) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5340&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht Date 25 September 2014 Parties X. SA v. Y. GmbH Case number 5A_165/2014 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) | VI Source http://www.bger.ch (website of Swiss Federal Tribunal)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3693&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 15 September 2014 Parties A. v. B. Case number 5A_409/2014 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(d) | V(1)(e) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3691&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 28 May 2014 Parties A. v. B. Case number 4A_35/2014 Source http://www.bger.ch (website of Swiss Federal Tribunal)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4591&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 27 May 2014 Parties A. v. B. Case number 4A_508/2013 Applicable NYC Provisions II | II(3) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3690&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 11 April 2014 Parties A v. B Case number C/17073/2012 Applicable NYC Provisions I | I(1) | I(2) | II | III | IV | IV(1) | IV(1)(a) | IV(1)(b) | V | V(1) | V(1)(b) | V(1)(d) | V(1)(e) | V(2) | V(2)(a) Source http://justice.geneve.ch (material licensed for reuse under the License Creative Commons Attribution 2.5 Suisse)
affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3692&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 21 January 2014 Parties X. Ltd v. Société Z. Case number 4A_250/2013 Applicable NYC Provisions V Source http://www.bger.ch (website of Swiss Federal Tribunal)
affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3689&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 13 November 2013 Parties Club X. SA v. Z. Case number 4A_282/2013 Applicable NYC Provisions V | V(1) | V(1)(d) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3688&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 26 July 2013 Case number 5A_68/2013, 5A_69/2013 Applicable NYC Provisions V | V(1) | V(1)(b) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1565&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 22 March 2013 Parties A v. B Case number C/11886/2011 Applicable NYC Provisions IV | IV(2) | V | V(1) | V(1)(b) | V(1)(d) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) Source http://justice.geneve.ch (material licensed for reuse under the License Creative Commons Attribution 2.5 Suisse)
affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3687&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 18 March 2013 Parties A. v. Bulgarische Fussballunion Case number 4A_388/2012 Applicable NYC Provisions V | V(2) | V(2)(a) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5339&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 10 January 2013 Case number 4A_146/2012 Applicable NYC Provisions V | V(1) | V(1)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1566&opac_view=6 Attachment (1)
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Martin Bernet ; Philipp Meier / Chapter 10: Recognition and Enforcement of Arbitral Awards / International Arbitration Switzerland: A Handbook for Practitioners, E. Geisinger and N. Voser eds., Kluwer Law International 199 (2013) - 2013
Author(s) Martin Bernet ; Philipp Meier Source International Arbitration Switzerland: A Handbook for Practitioners, E. Geisinger and N. Voser eds., Kluwer Law International 199 (2013) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Switzerland Worldcat Number Worldcat : 837167808 
ISBN 978-90-411-3848-4 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3183&opac_view=6
Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 21 December 2012 Case number 5A_355/2012 Applicable NYC Provisions II | V Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1567&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 04 December 2012 Parties X. v. Z. Case number 5A_598/2012 Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6297&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 18 September 2012 Parties YX., ZX., VX. and WX. v. A. and BX. Case number 5A_344/2012 Applicable NYC Provisions IV | IV(1) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages French Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6296&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 22 August 2012 Case number 14.2012.102 Applicable NYC Provisions V | V(1) | V(1)(e) | VII Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary An award was rendered in Italy in favor of X, and was declared enforceable by the Tribunale Ordinario di Roma (First Instance Court of Rome). Y requested the Corte d’Appello di Roma (Rome Court of Appeal) to suspend enforcement of the award. Meanwhile, X obtained a payment order against Y’s assets in Switzerland from the Ufficio d’esecuzione di Lugano (Debt Collection Office of Lugano), against which Y raised an objection (opposizione) which was dismissed (rigetto definitivo) by the Pretore del Distretto di Lugano (First Instance Court of Lugano). Y appealed, arguing, inter alia, that the award, on the basis of which the payment order was issued, disregarded the requirements of the Convention between Switzerland and Italy on the recognition and enforcement of judgments of 1933, which required that awards rendered in Italy, in order to be recognized and enforced in Switzerland, had to have been declared enforceable in Italy. It argued that the payment order had been issued before the Corte d’Appello di Roma had rejected Y’s request to suspend enforcement of the award in Italy, and that the Ufficio d’esecuzione di Lugano should not have issued the payment order until the award had become binding on the parties. The Camera di esecuzione e fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) dismissed the appeal, thereby dismissing the objection to the payment order and allowing the enforcement of the award to proceed. The Tribunale d’Appello observed that pursuant to Article 194 of the Federal Act on Private International Law, the NYC is applicable to the enforcement and recognition of foreign awards. It held that while Article VII NYC reserves the application of multilateral or bilateral agreements entered into by the Contracting States, the Federal Council had expressed the view that a party may rely on the most favorable provisions in any international agreements having the same scope as the NYC. Based on this, the Tribunale d’Appello held that X could rely on the provisions of the NYC, which were less restrictive than the Convention between Switzerland and Italy concerning the recognition and enforcement of foreign awards regarding the documents required to be provided by a party seeking recognition and enforcement. The Tribunale d’Appello also ruled that Article V NYC does not require the award to be recognized and enforced in the country where it is rendered, but only that, under Article V(1)(e), recognition and enforcement of foreign awards may be refused if the party opposing enforcement could show that the award had not yet become binding on the parties, or had been set aside or suspended by a competent authority in the country where it was rendered. It added that Y’s request to suspend enforcement of the award in Italy had been dismissed and that under Italian law, an action to set aside an award does not have a suspensive effect. In this context, the Tribunale d’Appello held that the award was enforceable, justifying the dismissal of the objection. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1291&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Bundesgericht Date 02 July 2012 Case number 5A_754/2011 Applicable NYC Provisions IV | IV(1) | IV(2) | V | V(2) | V(2)(b) | VII | VII(1) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary The parties entered into an exclusive distribution and licensing agreement, which provided for arbitration under the Rules of the International Chamber of Commerce (“ICC”) by a sole arbitrator in London. A dispute arose and the licensor initiated arbitration proceedings. The sole arbitrator rendered an award prohibiting the licensee from further using certain trademarks belonging to the licensor, while at the same time ordering the licensor to make certain payments to the licensee, including payments for its arbitration costs. The licensee sought leave to enforce its award from the Bezirksgericht (Regional Court) Höfe, which essentially granted the request. The licensor appealed, unsuccessfully, to the Kantonsgericht Schyz (Cantonal Court) Schwyz, and subsequently to the Bundesgericht (Swiss Federal Tribunal). The licensor contented that the licensee’s submission of only a partial translation of the English arbitral award into German violated Article IV(2) NYC, which, it argued, mandatorily required the submission of a German translation of the full text of the arbitral award which was sought to be enforced, regardless of whether the court was capable of understanding the award in the English. It also argued that recognition and enforcement of the award would violate Swiss public policy under Article V(2)(b) NYC since the arbitral award ordered it to bear the full costs of the arbitration. The Bundesgericht dismissed the licensor’s appeal, upholding the decision granting leave to enforce the award. The Bundesgericht stated that there were differing views on the interpretation of Article IV(1) NYC both in academia and in court practice, and found that under Articles 31-33 of the Vienna Convention on the Law of Treaties the provision needed to be interpreted with a view to good faith, in conformity with its common meaning and in the light of its object and purpose. The Bundesgericht stated that the purpose of the NYC was to facilitate the recognition and enforcement of foreign arbitral awards, which required the enforcement-friendly interpretation of its norms. Moreover, the Bundesgericht found that Article IV(2) NYC served the function of enabling the enforcement court to evaluate possible grounds to refuse enforcement under Article V NYC based on a version of the arbitral award in a language that it could understand. The Bundesgericht further recalled that its prior case law indicated that form requirements under Article IV NYC were not to be applied restrictively. It concluded that it would be purely formalistic to require a full translation of the award in the present case, given that the licensee had provided a translation of the award’s dispositive section and of the section on costs that was disputed between the parties and which could have formed the basis of a possible defense under Article V NYC. In addition, the Bundesgericht found that Swiss courts nowadays normally do not depend on a translation in the case of English-language arbitral awards, so that the non-provision of a full translation did not endanger the purpose of Article IV(2) NYC. The Bundesgericht thus concluded that based on a flexible, pragmatic and non-formalistic interpretation of Article IV(2) NYC, the provision of only a partial translation of the arbitral award was sufficient, and that a more restrictive interpretation would run counter to the recognition and enforcement friendly spirit and objective of the NYC. The Bundesgericht also noted that the licensor had not claimed that it required a translation of the full award to safeguard its own legal rights. It also held that since it had interpreted Article IV(2) NYC as not requiring a translation of the entire award, it did not need to decide whether the same result could have been reached by application of more lenient requirements under Swiss domestic law in accordance with Article VII(1) NYC. As regards the licensor’s argument that the recognition and enforcement of the award would violate Swiss public policy, the Bundesgericht held that it did not need to address this defense since the licensor had in this regard simply resubmitted the same arguments that it had previously submitted to the Kantonsgericht, without addressing the Kantonsgericht’s reasoning for why the enforcement of the cost award did not violate Swiss public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1427&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 23 May 2012 Parties Serbischer Fussballverband (Football Association of Serbia) v. M. Case number 4A_654/2011 Applicable NYC Provisions V | V(1) | V(1)(a) | V(2) | V(2)(a) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5338&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 27 March 2012 Parties Francelino da Silva Matuzalem v. Fédération Internationale de Football Association (FIFA) Case number 4A_558/2011 Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5337&opac_view=6 Attachment (1)
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Author(s) Matthias Scherer Source Kluwer Arbitration Blog (6 August 2012) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Switzerland ISBN 978-3-86653-150-5 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3182&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 16 December 2011 Parties A v. B Case number 5A_441/2011 Applicable NYC Provisions IV | V | V(1) | V(1)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary Three contracts were concluded between a seller and a buyer. A dispute arose and the buyer filed a Request for Arbitration to the Grain and Feed Trade Association (GAFTA). An award was rendered on 26 May 2005 in favor of C. On 25 February 2008, the parties entered into a settlement agreement whereby the buyer agreed to waive its right to enforce the award in exchange for payment, in 8 installments, of half the sum awarded by the arbitral tribunal. The settlement agreement provided that in the case of non-payment of an installment, the settlement agreement would become void. The buyer subsequently assigned the settlement agreement to its holding. The seller did not pay one of the installments and the holding company terminated the settlement agreement and sought enforcement of the arbitral award. The seller opposed enforcement on the ground that it violated Article V(1)(b) NYC. The Tribunal de Première Instance (Court of First Instance) granted enforcement of the award and the Cour de Justice of Geneva (Court of Justice of Geneva) confirmed the enforcement order. The seller lodged an appeal before the Tribunal Fédéral. The Tribunal Fédéral (Federal Tribunal) dismissed the appeal. It held that international arbitral awards, if enforceable, are considered equivalent to judgments. The Tribunal Fédéral considered that the requirements of Article IV NYC were met and that it was for the party opposing enforcement to prove a violation of Article V(1)(b) NYC. The Tribunal Fédéral dismissed the argument that the seller’s representative had not been duly authorized to conduct the arbitration proceedings and therefore it was not properly served notice nor given an opportunity to participate in the arbitration proceedings, on the grounds that it pertained to the merits. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=915&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 10 October 2011 Case number 5A_427/2011 Applicable NYC Provisions V | V(2) | V(2)(b) | IV | IV(1) | IV(1)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary A and B concluded a contract for the delivery of goods from A to B. Bank acted as guarantor for B, agreeing to pay the price of goods upon the presentation of certain documents by A. These were presented and payment was made. Subsequently, B entertained doubts as to the authenticity of the documents and alleged that it had not received the agreed goods. B commenced an arbitration before the Syrian Council of State, relying on a pro forma invoice dated 22 February 2001 which provided for arbitration. The Council of State found that A had used a falsified inspection certificate in the documents submitted to the bank and that A did not participate in the proceedings. B’s bank also initiated criminal proceedings against A in France; the French court found there had been no fraud. B applied to the Tribunal of First Instance in Geneva, seeking to freeze A’s assets held by D’s bank in Geneva and enforce the award. In its application it submitted faxed copies of the invoice containing the arbitration agreement. The Tribunal of First Instance found for B; its decision was upheld on appeal. A appealed again. The Swiss Federal Tribunal dismissed A’s appeal. The Federal Tribunal held that Article IV(1)(b) NYC, which requires the original arbitration agreement to be submitted for an award to be enforceable, should not be interpreted in an excessively formalistic manner. It held that although that the document submitted was not the original invoice but a faxed copy, the authenticity of the document had not been challenged by A. Arguments by A that it had not been notified to participate in the proceedings (pursuant to Article V(1)(b) NYC) and that enforcement of the award would be contrary to Swiss public policy (Article V(2)(b) NYC) were unsuccessful on the facts. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=572&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Bundesgericht Date 14 February 2011 Case number 4A_508/2010 Applicable NYC Provisions IV | IV(1) | V | V(1) | V(1)(c) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary A Venezuelan consultant entered into a consultancy agreement with a Dutch company, which provided for arbitration in accordance with the Arbitration Rules of the International Chamber of Commerce (“ICC”)”. The consultancy agreement provided for arbitration in accordance with the Arbitration Rules of the International Chamber of Commerce (“ICC”). A dispute arose and the consultant initiated arbitration proceedings before a tribunal seated in Rotterdam, pursuing claims for outstanding consulting fees. The consultant also applied to the Zivilgericht (Civil Court) Basel-Stadt for the attachment of the Dutch company’s bank account. The Zivilgericht granted the attachment order and the Dutch company filed an objection (Beschwerde) to the Appellationsgericht (Court of Appeal) Basel-Stadt and also filed a counter-claim at before the arbitral tribunal for damages, alleging that the consultant’s attachment application violated the arbitration and confidentiality clauses contained in the consultancy agreement. The Appellationsgericht overturned the Zivilgericht’s attachment order. The Dutch company filed a claim for damages with the Zivilgericht regarding the consultant’s unjustified attachment. The tribunal issued a partial award dismissing the Dutch company’s counter-claim. The Zivilgericht also dismissed the Dutch company’s claim for damages, holding that jurisdiction to decide the claim lay with the arbitral tribunal, and that, in addition, the tribunal had already decided the Dutch company’s claim with res judicata effect. The Dutch company appealed to the Appellationsgericht (Court of Appeal), which rejected the appeal. It further appealed to the Bundesgericht (Swiss Federal Tribunal), seeking an annulment of the Appellationsgericht’s decision, a declaration that the Zivilgericht had jurisdiction, and that the partial award had no res judicata effect since the damages claims it had raised in the court proceedings were different from the claims it had raised in the arbitral proceedings. The Bundesgericht repealed the Appellationsgericht’s decision and remanded the matter back to it for a new decision, finding that the Appellationsgericht’s reasoning was incomplete and partly inconsistent. In particular, it found that the Appellationsgericht had failed to state the legal criteria based upon which it had determined that the subject matter of the company’s counter-claims before the arbitral tribunal were identical to that of its state court claims, and the legal effect that an arbitral award issued in Rotterdam would have in Switzerland. The Bundesgericht held that the Appellationsgericht needed to take into account that a Swiss court was bound by the res judicata effect of a foreign arbitral award only to the extent the arbitral award was enforceable in Switzerland, and that it would thus need to assess, as a preliminary matter, whether the requirements under the NYC for the recognition of the partial award had been met. The Bundesgericht stated that it was necessary for the recognition and enforcement of a foreign arbitral award that the formal requirements under Article IV(1) NYC were met, and that the Appellationsgericht would, in particular, have to assess whether recognition would need to be refused under Article V(1)(c) NYC, since the Dutch company had previously asserted that its damages claims before the Swiss courts were unrelated to the contractual claims covered by the arbitration clause. It observed that the Appellationsgericht would thus need to assess the objective scope of application of the arbitration clause, which had importance not only for the jurisdiction of the arbitral tribunal but also for whether recognition could be refused under Article V(1)(c) NYC. The Bundesgericht further held that, to the extent that the Appellationsgericht found that the partial award could be recognized under the NYC, it would then need to determine whether the res judicata effect of the arbitration award hindered the admissibility of the company’s damages proceedings before the Swiss courts. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1428&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 09 December 2010 Case number 14.2010.98 Applicable NYC Provisions IV | IV(1) | IV(2) | V | V(1) | V(1)(e) | V(2) | V(2)(b) | VI Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary An award was rendered in Italy and was declared enforceable in Italy by the Tribunale Ordinario. Y initiated an action before the Corte d’Appello (Court of Appeal) to have the award set aside. Meanwhile, X obtained a payment order against Y’s assets in Switzerland from an Ufficio d’esecuzione. Y raised an objection (opposizione) against the payment order and X requested dismissal of the objection (rigetto definitivo) before the Pretore (First Instance Court). Y argued, inter alia, that the award had not yet become binding on the parties because the action to set aside the award was still pending in Italy. The Pretore dismissed Y’s objection, holding that the Corte d’Appello in Italy had not suspended the enforceability of the award. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal), dismissed the appeal, thereby dismissing the objection to the payment order and allowing the enforcement of the award to proceed. The Tribunale d’Appello observed that pursuant to Article 194 of the Federal Act on Private International Law, the NYC is applicable to the enforcement and recognition of foreign awards. It held that X had complied with the provisions of Article IV(1) NYC by providing the original arbitration agreement and a certified copy of the award. It also noted that Article V(1)(e) did not require that the award be declared enforceable in the country in which it was made in order to be recognized and enforced abroad, unless such was required by the law of the country where it was rendered. The Tribunale d’Appello found that Italian law did not set such a requirement and that thus the award had become binding on the parties. It also observed that the Corte d’Appello in Italy had not suspended the enforceability of the award pursuant to Article VI NYC. Finally, the Tribunale d’Appello held that the award complied with the provisions of Articles V(2)(a) and V(2)(b) NYC, in that the subject matter of the dispute was capable of settlement by arbitration under Swiss law and that recognition and enforcement would not be contrary to Swiss public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1292&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht Date 25 October 2010 Case number 4A_279/2010 Applicable NYC Provisions II | II(3) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary An investment company domiciled in the Netherlands Antilles entered into an “Asset Management Facilitation Agreement” (“AMFA”) with a Swiss asset management company. The AMFA provided that disputes should be submitted “to binding arbitration through The American Arbitration Association or to any other US court” and that “[t]he arbitration shall be conducted based upon the Rules and Regulations of the International Chamber of Commerce (ICC 500).” A dispute arose and the investment company sued the asset management company and other respondents before the Kantonsgericht (Cantonal Court) Zug, seeking repayment of a transaction fee and a declaration that the AMFA was void. The asset management company objected to the jurisdiction of the Kantonsgericht based on the arbitration clause in the AMFA. The Katonsgericht rejected the jurisdictional objection and the investment company appealed to the Obergericht (Higher Cantonal Court) Zug. The Obergericht rejected the appeal, finding that no valid arbitration agreement existed between the parties and that the Kantonsgericht was thus competent to decide the case. The investment company then appealed to the Bundesgericht (Swiss Federal Tribunal) requesting that the parties be referred to arbitration, and alleging that the Obergericht’s decision had violated Article II(3) NYC. The Bundesgericht (Swiss Federal Tribunal) dismissed the appeal, thus affirming the invalidity of the arbitration clause. The Bundesgericht stated that because the alleged arbitration agreement foresaw the competing jurisdiction of a foreign arbitration tribunal, the question of jurisdiction had to be decided based on the NYC. It also noted that since Switzerland had withdrawn its reciprocity reservation to the NYC, the NYC was applicable whether or not the arbitration award would have been issued in a contracting party to the NYC. The Bundesgericht observed that under the NYC, the jurisdiction of a state court could be derogated in favor of an arbitral tribunal if a party raised the existence of an arbitration agreement in state court proceedings, provided that the requirements of Article II(3) NYC were met, i.e., that the agreement was not null and void, inoperative or incapable of being performed. The Bundesgericht noted that the lower courts had determined that the parties had not specifically agreed on the law applicable to the arbitration agreement, and that this would generally lead to the application of the lex arbitri. However, since none of the parties had declared an interest in the application of a foreign law, the lower courts had instead applied Swiss law. The Bundesgericht observed that since none of the parties had contested the possible application of Swiss law, it could apply Swiss law to determine the validity of the arbitration clause. It found that it would first need to determine whether the relevant clause in the AMFA showed, beyond doubt, the will of the parties to refer disputes under the agreement to a private arbitral tribunal to the exclusion of the jurisdiction of state courts, and only if that was the case, would it need to determine whether the arbitration clause was sufficiently clear as to the arbitral institution that was to administer the arbitral proceedings. It stated that the determination of whether the parties had agreed to resolve their disputes by arbitration needed to be made by interpreting the arbitration agreement in accordance with the general principles for the interpretation of private declarations of will, according to which the court needed to determine the actual will of the parties and, if that was not possible, the will of the parties from the perspective of an objective third party in light of the principle of good faith. The Bundesgericht held that it needed to adopt a restrictive interpretation with respect to the question of whether the clause contained an agreement to arbitrate, because the choice to refer disputes to arbitration had many implications considering that arbitration proceedings were generally more costly than state court proceedings and limited recourse to higher instances. However, it held that once a court reached the conclusion that the parties had indeed opted for arbitration, it needed to interpret the arbitration agreement in a way that, if possible, sustained the validity of the arbitration agreement such that an imprecise or defective reference to an arbitral tribunal did not result in the invalidity of the arbitration agreement. The Bundesgericht found that the wording of the relevant clause in the AMFA was not sufficiently clear so as to exclude the jurisdiction of the state courts beyond doubt. The Bundesgericht, having thus found the arbitration agreement to be void, concluded that it need not decide whether the arbitration clause was incurably pathological or not. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1418&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Bundesgericht Date 04 October 2010 Case number 4A_124/2010 Applicable NYC Provisions IV | IV(1) | IV(1)(a) | V | V(1) | V(1)(b) | V(1)(d) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary The Applicant entered into a sale purchase agreement for sheet steel with the Respondent’s Czechoslovak predecessor company. The parties agreed that disputes under the contract should be resolved by the arbitration court at the Czechoslovak Chamber of Commerce and Industry and that Czech substantive law should apply. After the dissolution of Czechoslovakia, the Respondent initiated arbitration proceedings at the arbitration court of the Chamber of Commerce of the Czech Republic and the Czech Agriculture Chamber. Dismissing the Applicant’s objection to jurisdiction, the arbitral tribunal confirmed its jurisdiction in an interim award followed by a final award in favor of the Respondent. Upon the Respondent’s application, the Bezirksgericht (Regional Court) Zurich recognized the award and declared it to be enforceable. The Applicant appealed to the Obergericht (Higher Cantonal Court) Zurich, which rejected the appeal, except in relation to nominal sums. Thereafter, the Applicant filed a complaint (Beschwerde) before the Bundesgericht (Swiss Federal Tribunal), requesting it to annul the Obergericht’s decision and not to declare the award enforceable. The Applicant alleged that the Obergericht’s decision was incorrect because (i) the Respondent had not submitted all relevant documentation, as required under Article IV(1) NYC, at the time of submission of its original enforcement application and could not submit such documentation later, (ii) the arbitral award of which the Respondent had submitted a certified copy had been signed only by the tribunal chairman, but not by the other two tribunal members, (iii) the enforcement of the award violated Swiss public policy, (iv) the recognition and enforcement violated Article V(1)(d) and (b) NYC because it was issued by a tribunal of the Chamber of Commerce of the Czech Republic and the Czech Agriculture Chamber under the arbitration rules of the same, both of which the parties had not previously agreed to, (v) the arbitrators’ nomination violated Article V(1)(d) NYC since the arbitrators were not appointed by the Czechoslovak Chamber of Commerce and Industry, and (vi) the award violated Article V(1)(d) NYC since the chairman of the tribunal participated both in the decision regarding the Applicant’s jurisdictional defense and the final award, which was not permitted by the applicable arbitral rules. The Bundesgericht upheld the Obergericht’s decision. It found that Article IV(1) NYC did not prevent an enforcement creditor from resubmitting an enforcement application, noting that both international case law and academic literature showed that a subsequent submission of improved documentation in the same proceedings, or the resubmission of an enforcement application together with improved documentation, was permitted. It found that it would contradict the exhaustive enumeration of grounds for refusal of enforcement under Article V NYC, and the required narrow interpretation of such grounds in light of the recognition and enforcement friendly spirit of the NYC, by not permitting the resubmission of a recognition and enforcement application solely on the ground that the possibility of resubmission was not foreseen by the text of the NYC. According to the Bundesgericht, not allowing a resubmission would be equivalent to creating a procedural ground for refusing recognition and enforcement that was not foreseen in the NYC. The Bundesgericht further found that, in the present case, the fact that the award submitted by the Respondent was a duly certified copy which had been signed only by the tribunal chairman did not affect its enforceability. It held that the form requirements under Article IV NYC were not to be interpreted restrictively since it was the purpose of the NYC to facilitate the enforcement of arbitral awards. It moreover held that certification under Article IV(1)(a) NYC meant a confirmation of the authenticity of the award and that such certification was not necessary if the authenticity of the award was not contested at all, as in the present case. Regarding the public policy defense, the Bundesgericht noted that Article V(2)(b) NYC was an exception provision, which was to be interpreted restrictively both generally and even more so in the context of proceedings for recognition and enforcement of foreign decisions in relation to which the public policy defense was more limited compared to the direct application of foreign law. The Bundesgericht stated that the recognition of a foreign award would violate Swiss public policy if it violated the local sense of justice in an unacceptable manner so as to disrespect fundamental provisions of the Swiss legal order. It further clarified that a foreign decision could be incompatible with the Swiss legal order either due to its substantive content or due to a violation of fundamental procedural principles, such as the right to a fair proceeding or the right to be heard. The Bundesgericht found that the Applicant had not shown that the recognition and enforcement of the award would intolerably violate the Swiss sense of justice. As regards the alleged violation of Article V(1)(d) NYC, the Bundesgericht found that it was not a violation of Article V(1)(d) and V(1)(b) NYC, or of party autonomy that the award had been issued by the Chamber of Commerce of the Czech Republic and the Czech Agriculture Chamber, since the Czechoslovak institution originally agreed upon by the parties no longer existed after the dissolution of Czechoslovakia and the acting institution had been determined under a particular Czech law to be its legal successor and that the arbitration rules of the successor institution could indeed be applied given that they did not substantially differ from the old rules and did not reduce the rights of the parties. Based on the same reasoning the Bundesgericht also rejected the alleged violation of Article V(1)(d) NYC in relation to the fact that the arbitrators were not appointed by the Czechoslovak Chamber of Commerce and Industry. Finally, the Bundesgericht rejected the alleged violation of Article V(1)(d) NYC in relation to the chairman’s participation in both the decision about the Applicant’s jurisdictional defense and the final award, finding that the parties had been given an opportunity to object to this but had failed to do so. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1423&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 28 July 2010 Case number 4A_233/2010 Applicable NYC Provisions V | V(1) | V(1)(d) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary Y, a company incorporated in the USA, contracted to maintain and service three aircrafts of X, a Swiss company. The contract provided for arbitration before a panel of three arbitrators. Y initiated arbitral proceedings and, with X’s consent, submitted the dispute to a sole arbitrator. The arbitrator ordered an award for damages in favour of Y. Y sought to enforce the award in Switzerland. X argued that the award had been improperly procured because: (i) it was determined by a sole arbitrator, contrary to the provisions of the contract; (ii) the arbitrator’s daughter had been a trainee in Y’s counsel’s law firm and Y’s counsel had met the arbitrator once; and, (iii) Y’s counsel and the arbitrator were qualified to practice before the same Circuit of Court of Appeals in the United States. Matter (ii) had been put to X’s counsel, who had answered that it had no objection to the continuance of arbitral proceedings. X’s arguments were rejected by the Tribunal of First Instance of Geneva and the Court of Justice of the Canton of Geneva. X appealed. The Swiss Federal Tribunal dismissed the appeal. With respect to (i), X had consented to a sole arbitrator; (ii), even X’s counsel had not considered that matter to have been prejudicial; and, (iii) did not cast doubt on the arbitrator’s impartiality. The Federal Tribunal held that Article V NYC is exhaustive (3.2.1). It further held that the party opposing recognition and enforcement bears the burden of proof under Article V(1) NYC (3.2.1). Finally, a party must raise any grounds for challenge as soon as it becomes aware of them (3.2.1). For the recognition of an award to violate Swiss public policy, such recognition must offend Swiss concepts of justice in an intolerable manner (3.2.1). see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=571&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 20 April 2010 Parties X. AG v. Z. Case number 5A_682/2009 Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages German Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5336&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 04 March 2010 Parties X v. Y SA Case number C/19989/2009 Applicable NYC Provisions IV | V | V(1) | V(1)(e) | VI Source http://justice.geneve.ch (material licensed for reuse under the License Creative Commons Attribution 2.5 Suisse)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3686&opac_view=6 Attachment (1)
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