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Switzerland / 24 February 2010 / Switzerland, Seconda Camera civile del Tribunale d’appello, Repubblica e Cantone Ticino / 12.2009.58
Country Switzerland Court Switzerland, Seconda Camera civile del Tribunale d’appello, Repubblica e Cantone Ticino Date 24 February 2010 Case number 12.2009.58 Applicable NYC Provisions II | II(3) Source http://www.sentenze.ti.ch/ (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages Italian Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=5659&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 February 2010 Case number 14.2009.104 Applicable NYC Provisions IV | IV(1) | IV(2) | V | V(1) | V(1)(a) | V(1)(b) | 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 The parties, X and Y, entered into a remission agreement (accordo di remissione), which referred to a collection agreement (accordo di riscossione) to which Y was not a party. A dispute arose and following arbitration proceedings in the United States under the American Arbitration Association, an award was rendered against Y. Upon application by X, an Ufficio d’Esecuzione (Debt collection office) in Switzerland issued a payment order against Y’s assets. Y raised an objection against the payment order (opposizione) and X sought dismissal of the objection (rigetto definitivo) before the Pretore (First Instance Court). Y argued, inter alia, that (i) it had not consented to arbitration, (ii) it had not been given proper notice of the arbitration proceedings, and (iii) an action to have the award set aside was pending before the courts of California. The Pretore granted Y’s objection, holding that the remission agreement upon which X relied did not contain an arbitration clause, but only referred to the collection agreement for arbitration, to which Y was not a party. X appealed, arguing that the arbitration clause had been reproduced in its entirety in the remission agreement and that as the courts of California had not suspended the enforceability of the award, it was binding upon the parties. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) overturned the decision of the Pretore, thus 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 Act, the NYC is applicable to the enforcement and recognition of foreign awards. In this regard, it held that X had complied with the provisions of Article IV(1) and IV(2) NYC by providing certified copies and translations of both the arbitration agreement and award. It then found that the award complied with Article V(1)(a) NYC because the arbitration clause in the collection agreement, to which Y was not party, had been reproduced in the remission agreement signed by Y. The Tribunale d’appello also ruled that Y had been able to present its case and had received proper notice of the arbitration proceedings in accordance with Article V(1)(b) NYC. It held further that the courts of California had not suspended the enforceability of the award pursuant to Article VI NYC, thus the award had become binding on the parties in accordance with Article V(1)(e) NYC. Finally, the Tribunale d’Appello rejected Y’s claim that the award violated Swiss public policy, reasoning that as Y had been able to present its case in accordance with Article V(1)(b) NYC, the award was not contrary to the provisions of Article V(2)(b) NYC. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1293&opac_view=6 Attachment (1)
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Domitille Baizeau / Enforcement of Foreign Arbitral Awards: The Swiss Pro-Enforcement Framework and Judicial Approach / Litigation, Arbitration & Dispute Resolution: Digital Guide (2010) - 2010
Author(s) Domitille Baizeau Source Litigation, Arbitration & Dispute Resolution: Digital Guide (2010) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Switzerland ISBN 978-90-411-3795-1 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3180&opac_view=6 Attachment (1)
External ResourceExternal Resource
Author(s) Christoph Müller Source Schulthess Medias Juridiques SA, 2nd revised ed. 387 (2010) 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 : 587715907 
ISBN 978-3-86653-150-5 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3181&opac_view=6
Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 25 August 2009 Parties A. v. B. Case number 4A_160/2009 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=5335&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 09 February 2009 Parties A. and B. v. C. Case number 5A_634/2008 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=6295&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 09 December 2008 Case number 4A_403/2008 Applicable NYC Provisions V | V(1) | V(1)(e) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary State Y and Company X entered into a Memorandum of Understanding (MoU) on 31 July 2002 providing for ICC arbitration in Paris. A dispute arose as to certain payments alleged due by State Y to Company X under the MoU. State Y commenced an arbitration. The arbitral tribunal rendered an award holding that that the alleged debt under the MoU was nonexistent. State Y sought enforcement orders for the award in France and Switzerland. The Tribunal of First Instance of Geneva granted recognition. Company X appealed before the Court of Justice of Geneva, which upheld the decision of the court below. Company X appealed to the Federal Tribunal. The Swiss Federal Tribunal dismissed the appeal. Company X opposed recognition and enforcement of the award on the basis that such recognition was contrary to Art V(1)(e) NYC. It argued that the award was not yet binding because an action to set aside was still available against the award in France and that under French law the deadline to bring an action to set aside an award suspends its enforceability. The Federal Tribunal held that the award was "binding" in the sense that no ordinary means of recourse are any longer available against it. It also held that an award does not need to be enforceable at the State of the seat in order to be considered as binding because this would amount to double exequatur. The Federal Tribunal accepted the fact that an action to set aside is available does not affect the nature of the award as binding and that thus Company X had failed to prove that the action to set aside was an ordinary means of recourse against the award. Finally, the Federal Tribunal held that the mere suspension of the award's enforceability by operation of the law of the seat does not affect the binding nature of the award, unless such suspension is declared by a court. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=570&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 27 November 2008 Case number 14.2008.78 Applicable NYC Provisions II | II(2) | IV | IV(1) 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 the United States, and was subsequently confirmed by a US court. Upon application by X, an Ufficio d’Esecuzione (Debt collection office) in Switzerland issued a payment order against Y on the basis of the judgment of the US court confirming the award. Y raised an objection against the payment order (opposizione) and X sought to have the objection dismissed (rigetto definitivo) before the Pretore (First Instance Court). Y argued, inter alia, that the Ufficio d’Esecuzione could not issue the payment order on the basis of the US judgment. The Pretore dismissed the opposition and Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) allowed the appeal, holding that the payment order should not have been issued based on the US judgment. It first noted that under the US “doctrine of merger”, a US court could confirm an award rendered in the United States with the effect that the judgment of the US court and the award become one and the same. It then held that Swiss law did not have the doctrine of merger and under Swiss law, the payment order had to be based on an enforceable award. The Tribunale d’Appello also observed that pursuant to Article 194 of the Federal Act on Private International Law (“PIL Act”) the NYC is applicable to the enforcement and recognition of foreign awards and held that X had not complied with the provisions of Article IV NYC as it had not provided the original arbitration agreement and a duly certified copy of the award. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1294&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 09 January 2008 Parties X v. Y Case number 4A_436/2007 Applicable NYC Provisions II | II(3) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary An attorney, X, entered into an agreement with a French couple pursuant to which the attorney was to provide assistance for domiciliation in Switzerland. The contract contained an arbitration agreement providing for arbitration in Switzerland. Subsequently the couple sought legal advice from X regarding certain tax issues. A dispute arose regarding the adequacy of this last legal advice. The spouse sued the attorney before local courts who then raised a jurisdictional objection based on the existence of the arbitration agreement. Both the Tribunal de Première Instance (Tribunal of First Instance) and the Cour de Justice of Geneva (Court of Justice of Geneva) upheld the jurisdiction of the State courts. The attorney lodged an appeal before the Tribunal Fédéral (Federal Tribunal). The Tribunal Fédéral dismissed the appeal. It held that since the arbitration agreement provided for arbitration in Switzerland, Article II(3) NYC did not apply. It held that it was manifest that the agreement did not cover the subsequent legal advice regarding tax issues but only applied to the domiciliation procedure. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=914&opac_view=6 Attachment (2)
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Author(s) Elliott Geisinger Source 25(1) Journal of International Arbitration 691 (2008) 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 : 775295383 ISBN 978-90-411-3795-1 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3179&opac_view=6
Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 20 July 2007 Parties X. v. Y. Case number 4A_137/2007 /len 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=5333&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 20 July 2007 Parties X. v. Y. Case number 4P.97/2006 /len 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=5334&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 22 March 2007 Parties X. v. ATP Tour Case number 4P.172/2006 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=5048&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 08 March 2006 Parties X. S.p.A v. Y. S.r.l. Case number 4P.278/2005 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=5047&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 03 January 2006 Parties Y v. X Case number 5P.292/2005 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(e) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary On 28 May 2003, X and Y, two companies engaged in the oil business, entered into a contract providing for the sale and delivery of oil. The contract contained an arbitration agreement providing for arbitration before the Riga Commercial Arbitral Tribunal. A dispute arose and Y seized the commercial arbitral tribunal of Riga which rendered an award on 2 December 2003 in favor of Y (the “First Award”). On 7 January 2004, the District Tribunal of Zimeliai of Riga granted enforcement of the award. Meanwhile, X too filed a Request for Arbitration before the Riga Commercial Arbitral Tribunal requesting the annulment of the contract. On 13 October 2003 the tribunal, ruling in the absence of Y, annulled the contract and directed Y to pay damages to X (the “Second Award”). On 12 January 2004 the the District Tribunal of Zimeliai of Riga refused to enforce the Second Award on the grounds that Y was not properly served notice of the arbitration proceedings. On 15 October 2004 X filed a second request before the Riga Commercial Arbitral Tribunal claiming damages for Y’s failure to perform the contract. Y was properly served notice but did not appear. On 16 November 2004 the Riga Commercial Arbitral Tribunal ruled in favor of X and directed Y to pay damages to X (the “Third Award”). In parallel, on 24 March 2004, Y sought enforcement in Switzerland of the First Award. The Tribunal de Première Instance of Geneva (Geneva Tribunal of First Instance) granted Y an escrow on X’s assets which was subsequently confirmed by the Cour de Justice of Geneva (Court of Justice of Geneva) and the Tribunal Fédéral (Federal Tribunal). At the same time, Y sought recovery of the sums awarded in the First Award and recognition of the said award in Switzerland. X brought an action opposing the execution (“requête de mainlevée”) on the ground that the amount should be set-off with the amounts decided in the Third Award. On 23 March 2005, the Tribunal de Première Instance granted recognition and enforcement to the First Award after off-setting the amount decided in the Third Award. The Cour de Justice of Geneva (Geneva Court of Justice) confirmed the decision of the Tribunal de Première Instance. It considered that compensation between the amounts decided in the First and the Third Award could operate if the Third Award was valid pursuant to the NYC. Analyzing the validity of the Third Award pursuant to the NYC, the Cour de Justice held that recognition and enforcement of an award could only be denied if one of the grounds in Article V(1) NYC was met. It considered that the Third Award was valid as Y did not prove any ground for non-recognition under of Article V(1)(b) NYC, and in particular, it was not disputed that service by simple letter was valid under Latvian law. Y lodged a public law appeal to the Tribunal Fédéral opposing recognition of the Third Award on the grounds that the Cour de Justice did not examine its arguments that the award violated Article V(1)(b) NYC that it did not receive notice of the proceedings leading to the Third Award, Article V(1)(e) NYC that the award had not been enforced in Latvia; and Article V(2)(b) NYC that the award violated Swiss public policy. The Tribunal Fédéral dismissed the appeal. The Tribunal Fédéral held that the Cour de Justice of Geneva examined the ground for non-enforcement based on Article V(1)(b) NYC and considered that service by simple letter was permitted under Latvian law and was therefore valid. The Tribunal Fédéral held that, pursuant to Article V(1)(e) NYC, an award does not need to be enforced in the country where it had been rendered but only be “binding” on the parties, which is the case when the award cannot be challenged by ordinary appeal. The Tribunal Fédéral added that an award would not be binding pursuant to Article V(1)(e) NYC if it had been set aside or was suspended pending annulment proceedings in the country where it had been rendered. The Tribunal Fédéral considered that, in the present case, the award was binding on the parties even though it was non enforceable in Latvia. The Tribunal Fédéral dismissed Y’s argument based on Article V(2)(b) NYC as inadmissible, because it was raised for first time and had not been raised it at earlier stages of the enforcement proceedings. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=933&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Bundesgericht (Federal Tribunal) Date 31 October 2005 Parties X. AS v. Y. Corporation Case number 4P.198/2005 /sza Applicable NYC Provisions V 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=5332&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 27 October 2005 Parties A. v. B. Case number 4P.174/2005 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=4590&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 21 February 2005 Parties X v. Y Case number 5P.353/2004 Applicable NYC Provisions V | V(1) | V(1)(b) | V(1)(e) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary On 28 May 2003, X and Y, two companies engaged in the oil business, entered into a sales contract containing an arbitration agreement providing for arbitration before the Riga Commercial Arbitral Tribunal. A dispute arose and the commercial arbitral tribunal of Riga rendered an award on 2 December 2003 in favor of Y (the “First Award”). On 7 January 2004, the District Tribunal of Zimeliai of Riga granted enforcement to the First Award. Meanwhile, X filed a Request for Arbitration before the Riga Commercial Arbitral Tribunal, requesting annulment of the contract. On 13 October 2003 the Riga Commercial Arbitral Tribunal annulled the contract and directed Y to pay damages to X (the “Second Award”). Y did not participate in the second proceedings. On 12 January 2004, the District Tribunal of Zimeliai of Riga refused to enforce the Second Award on the ground that Y had not properly been served notice of the arbitration proceedings. On 24 March 2004, Y filed a request before the Tribunal de Première Instance of Geneva (Geneva Tribunal of First Instance) for enforcement and execution of the First Award. Execution was granted on 25 March 2004 and confirmed by the Cour de Justice de Genève (Geneva Court of Justice) on 23 September 2004. The Cour de Justice of Geneva held that the NYC applied to enforcement of awards rendered outside of Switzerland. It recalled that, pursuant to Article V(1)(e) NYC, an award does not have to be enforced in the country where it had been rendered but needs only be “binding” on the parties. It considered that the award would be “binding” when it has res judicata and cannot be subject to further appeal. It added that recognition and enforcement may only be denied if the party opposing enforcement proves that one of the grounds of Article V(1) NYC is met. The Cour de Justice de Genève considered that X had not alleged any of these grounds, thus the arbitral award was binding. X lodged a public law appeal against the decision of the Cour de Justice, opposing enforcement on the grounds that (i) the First Award was not valid since the contract had been subsequently annulled by the Second Award, and (ii) it was not informed of the arbitral proceedings leading to the First Award, which constituted a ground for non-enforcement under Article V(1)(b) NYC. The Tribunal Fédéral (Federal Tribunal) dismissed the argument and upheld the decision enforcing the award of 2 December 2003. It confirmed that the First Award could be enforced independently of the order of the District Tribunal of Zimeliai of Riga confirming the First award. It also noted that since the District Tribunal of Zimeliai of Riga had refused to grant enforcement of the Second Award for lack of proper notice, the award could not be granted enforcement in Switzerland pursuant to Article V(1)(b) NYC. The Tribunal Fédéral added that while X accepted that recognition and enforcement of the First Award was governed by the NYC, it had not proven any grounds for non-enforcement under Article V(1)(b) NYC. The Tribunal Fédéral dismissed all other grounds based on Swiss internal law. affirms : see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=932&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Cour de Justice de Genève (Geneva Court of Justice) Date 23 September 2004 Parties X v. Y Case number C6165/2004 Applicable NYC Provisions V | V(1) | V(1)(e) Source Official Registry of the Cour de Justice de Genève
Languages English Summary On 28 May 2003, X and Y, two companies engaged in the oil business, entered into a sales contract containing an arbitration agreement providing for arbitration before the Riga Commercial Arbitral Tribunal. A dispute arose and Y seized the first instance court of Kuzerme in Riga, which ruled on 13 October 2003 in Y’s favor. On appeal, the District Court of Riga reversed the decision of the lower court. Y then seized the Commercial Arbitral Tribunal of Riga, which rendered an award on 2 December 2003 in favor of Y (the “First Award”). On 7 January 2004, the District Court of Zimeliai in Riga granted enforcement of the First Award. This decision was not subject to appeal. Meanwhile, X filed a Request for Arbitration before the Riga Commercial Arbitral Tribunal, requesting annulment of the sales contract. On 13 October 2003 the Riga Commercial Arbitral Tribunal, ruling in Y’s absence, annulled the contract and directed Y to pay damages to X (the “Second Award”). On 12 January 2004, the District Court of Zimeliai in Riga refused to enforce the Second Award on the grounds that Y had not been properly served notice of the arbitration proceedings. On 24 March 2004, Y filed a request before the Tribunal de Première Instance de Genève (Geneva Tribunal of First Instance) for seizure of X’s assets in Switzerland based on the First Award and the decision of the District Court of Zimeliai of Riga of 7 January 2004. X opposed the seizure on the grounds that the Second Award had annulled the sales contract and also that the decision of 7 January 2004 had been obtained through corruption. By order of 25 March 2004, The Tribunal de Première Instance allowed the seizure, observing that Y had produced a partial translation of the First Award, and that the award had subsequently been granted enforcement. It considered that the enforcement procedure in Latvia had been valid as there had been no evidence of corruption. It found that the First Award was binding pursuant to Article 194 of the Swiss Private International Law (“SPIL”) and Article V(1)(e) NYC. X appealed the decision, arguing that the Tribunal de Première Instance had based its decision on the 7 January 2004 decision of the Latvian District Court, which had erred manifestly on the facts. The Cour de Justice de Genève (Geneva Court of Justice) upheld the decision of the lower court. It considered that even though the First Award was rendered in a country which was not party to the NYC, pursuant to Article 194 of the SPIL its validity was governed by the NYC It noted that pursuant to Article V(1)(e) NYC, a foreign arbitral award did not need to be enforceable in its country of origin but only needed to have become binding upon the parties. It found that the award had become binding when it became res judicata and was not subject to an ordinary appeal. It added that enforcement of an award may be denied only if the party opposing enforcement could prove that one of the grounds in Article V(1) NYC had been met. The Cour de Justice de Genève ruled that X had not raised any of the grounds in Article V(1) NYC against the enforcement of the First Award, which had become binding notwithstanding the enforcement decision by the District Tribunal of Zimeliai of Riga, dated 7 January 2004. The Cour de Justice de Genève added that the Second Award, inasmuch as Y had not been served notice of the proceedings, did not conform to the requirements of the NYC and did not, therefore, its non-enforcement was not in contradiction to the enforcement of the First Award. affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1488&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 08 December 2003 Case number 4P.173/2003/ech Applicable NYC Provisions IV | IV(1) | IV(1)(b) | V | V(1) | V(1)(b) | V(1)(e) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary A contract was concluded between A and B for the sale of goods destined to C. The contract provided for ICC arbitration in London. A dispute arose and the sole arbitrator rendered a partial award which ordered specific sums to be paid by A. A challenge by A before the Paris Court of Appeal was dismissed and fees and costs were awarded to the respondent. Eventually a final award was rendered, ordering A to pay further sums. Upon being notified of the final award, A had recourse to the High Court in London. B sought the recognition and enforcement of the partial award and the order of the Paris Court of Appeal before the Tribunal of First Instance in Geneva. The Tribunal of First Instance so ordered and its decision was upheld by the Geneva Court of Justice. A appealed. The Swiss Federal Tribunal dismissed the appeal. It held that Article IV(1)(b) NYC requires an original copy of the arbitration agreement: although the respondent had not produced the agreement before the Tribunal of First Instance it did produce it on appeal, thereby complying with Article IV(1)(b) NYC (3.1). With respect to the partial nature of the award, the Tribunal held that Article V(1)(e) NYC allows for non-enforcement when an award has not become binding on the parties. The partial award, on the issues finally decided, was thus capable of enforcement (3.1). Although obiter, the Tribunal observed that ‘[a]n enforcement order will thus not be granted if […] [the award] is set aside in the country of origin’ or there is an action to set it aside (3.1). It also noted that, pursuant to the NYC, an award need not necessarily be enforceable in its country of origin for it to be granted enforcement in another country (3.1). The Federal Tribunal also rejected the argument that the enforcement of the partial award was contrary to public policy, under Article V(2)(b) NYC (4.1). see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=567&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Seconda Camera civile del Tribunale d’appello, Repubblica e Cantone Ticino Date 02 April 2003 Case number 12.2002.121 Applicable NYC Provisions II | II(1) | II(2) Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary On 26 February 2001, the owner of an apartment (“X”) entered into a rental agreement with an Italian company, which allowed the latter to sublet the apartment to two individuals (“Y”). The Italian company entered into a sublet agreement with Y on 1 March 2001, to which X was not a party, and which provided that part of the rent due to X would be paid by the Italian company. Several months later, on 6 June 2001, the parties to the sublet agreement entered into another agreement which contained an arbitration clause, and provided, inter alia, that the Italian company was no longer required to pay part of the rent. When Y refused to pay the rent in full, X terminated the rental agreement. Y challenged the termination before the Ufficio di Conciliazione in Material di Locazione (Conciliation Office Dealing with Rental Disputes). In the meantime, X sought an eviction order from the Pretore del Distretto di Lugano (First Instance Court of Lugano) and Y relied on the arbitration clause, claiming that the Pretore lacked jurisdiction to hear the matter. The Pretore dismissed Y’s claim, noting that Y had failed to raise the arbitration clause before the Ufficio di conciliazione and had thus waived its rights under the arbitration clause. Y appealed the decision. The Seconda Camera Civile del Tribunale d’Appello (Second Civil Chamber of the Court of appeal) dismissed the appeal, confirming the jurisdiction of Swiss courts. It first noted that pursuant to both Swiss law and Articles II(1) and II(2) NYC, the courts were required to recognize agreements containing an arbitration clause which were in writing and signed by the parties. It then held that X was not bound by the arbitration clause contained in the agreement of 6 June 2001 because it had not signed the agreement. The Tribunale d’Appello also held that under Swiss law the subject-matter of the dispute was not capable of settlement by arbitration because eviction proceedings fell within the exclusive jurisdiction of the Swiss courts. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1295&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 05 February 2003 Case number 14.2002.81 Applicable NYC Provisions III | V | V(1) | V(1)(a) | V(1)(b) | V(1)(c) | V(2) | V(2)(b) Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary The International Commercial Arbitration Court (ICAC) of the Chamber of Commerce and Industry of the Russian Federation rendered an award in Moscow, which X relied upon to obtain a payment order from the Ufficio di Esecuzione di Lugano (Debt Collection Office of Lugano). Y raised an objection (opposizione) to the issuance of the payment order and X requested dismissal of the objection (rigetto definitivo) before the Pretore del Distretto di Lugano (First Instance Court of Lugano). Y argued that the exchange rate applied in the payment order was erroneous. In the alternative, Y argued that (i) the arbitration agreement was invalid pursuant to Article V(1)(a) NYC, (ii) the arbitrators had decided on a claim which did not fall under the arbitration agreement, constituting a breach of Article V(1)(c) NYC, and (iii) the arbitrators had failed to rule upon one of Y’s claims, in violation of Articles V(1)(b) and V(2)(b) NYC. The Pretore dismissed the objection, confirming the exchange rate which had already been used in a previous payment order issued by the Ufficio di Escuzione di Lugano. It further held that as Y had failed to question the validity of the arbitration agreement during the arbitration proceedings, it could not now raise the objection in enforcement proceedings. Lastly, the Pretore found that Y’s other arguments pertained to the merits and were thus outside its jurisdiction. Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) upheld the appeal, granting Y’s objection to the payment order and thus refusing enforcement of the award. The Tribunale d’Appello noted that the recognition and enforcement of foreign awards was governed by bilateral or multilateral conventions, or in absence of such conventions, by the provisions of the Federal Act on Private International Law. In the present case, the Tribunale d’Appello found that the NYC was applicable because (i) the parties had not challenged its applicability, (ii) the seat of the arbitration was located abroad, and (iii) there was no bilateral convention between Switzerland and Russia for the enforcement of foreign awards. Pursuant to Article III NYC, which provides that awards shall be enforced in accordance with the rules of procedure of the territory where the award is relied upon (Swiss law in the present case), the Tribunale d’Appello held that X’s request for dismissal of the objection should be rejected since it had failed to demonstrate that the exchange rate was accurate, as required by Swiss law. The Tribunale d’Appello did not address the other arguments raised by the parties. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1296&opac_view=6 Attachment (1)
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Author(s) Roland Müller Source 21(4) ASA Bulletin 703 (2003) 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 : 198075109 ISBN 978-90-411-3795-1 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3178&opac_view=6
Country Switzerland Court Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino Date 16 September 2002 Case number 14.2002.00042 Applicable NYC Provisions II | II(2) | IV | IV(1) | V | V(1) | V(1)(b) | V(1)(c) | V(1)(d) | V(2) | V(2)(b) Source www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities
Languages English Summary The parties entered into an agreement which provided for arbitration in Moscow under the International Commercial Arbitration Court (ICAC) of the Chamber of Commerce and Industry of the Russian Federation. A dispute arose and X obtained a favorable award. Y sought to have the award set aside in Russia, arguing that it had been unable to present its case and that the subject-matter of the dispute was not capable of settlement by arbitration. Both the District Court and the Supreme Court of Russia dismissed Y’s claims. X applied to the Ufficio di esecuzione di Lugano (Debt Collection Office of Lugano) in Switzerland and obtained a payment order, to which Y raised an objection (opposizione). X requested dismissal of the objection (rigetto definitivo) before the Segretaria Assessore della Pretura di Lugano (Assessor Secretary of the First Instance Court of Lugano), which granted dismissal. The Segretariat Assessore found that X had complied with the requirements of Article IV NYC and rejected Y’s claims by referring to the decisions of the Russian courts in the annulment proceedings. Y appealed, arguing that its claim that its right to present its case had been violated should have been assessed on the basis of Articles V(1)(d) and V(2)(b) NYC and not the Russian decisions, and that the arbitral tribunal had dealt with the issue of the termination of the agreement although it did not fall within the scope of the arbitration agreement, which, according to Y, was limited to disputes relating to the performance of the agreement. 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 Y’s objection to the payment order and allowing the enforcement of the award to proceed. It first noted that the recognition and enforcement of foreign awards was governed by bilateral or multilateral conventions, or in absence of such conventions, by the Federal Act on Private International Law. It then held that the NYC was applicable as the seat of the arbitration was located abroad and there was no bilateral convention in force between Switzerland and Russia concerning the enforcement of foreign awards. Based on this, the Tribunale d’Appello found that X had complied with the requirements of Article IV(1) NYC by providing certified copies and translations of the arbitration agreement and the award. It held that though the violation of the right to be heard is governed by the provisions of Article V(1)(b) NYC, it relied on the rulings of the Russian courts regarding this issue. It rejected Y’s other claims under Articles V(1)(d) and V(2)(b) NYC, holding that Y had failed to produce any evidence in support of its claims. Finally, with respect to the scope of the arbitration agreement (Article V(1)(c) NYC), the Tribunale d’Appello stated that it was not bound by the rulings of the arbitral tribunal and of the Russian courts and concluded that the parties had agreed to submit all disputes arising out of the agreement (whether related to its performance or its termination) to the same arbitral tribunal. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1297&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Bundesgericht Date 31 May 2002 Case number 4P.102/2001 Applicable NYC Provisions II | II(1) | II(2) | IV | IV(1) | IV(1)(b) | V Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary A broker arranged for the negotiation of a charter party between the Applicant and the Respondent under which the Applicant was to transport used cars to Libya in two shipments. The charter party contained a reference to the general terms and conditions, which contained an arbitration clause. Neither party signed the charter party. A dispute arose in relation to the shipment and the Applicant initiated arbitration proceedings in London, obtaining a favorable award. It then sought to have the award declared enforceable by the Bezirksgericht (Regional Court) Zurich, which rejected the request. The Applicant appealed, unsuccessfully, to the Obergericht (Higher Cantonal Court) Zurich, after which it filed a complaint (staatsrechtliche Beschwerde) to the Bundesgericht (Swiss Federal Tribunal). The Applicant alleged that the Respondent had received a copy of the same general terms and conditions in the context of an earlier charter party that had been arranged by the same broker, and that it had implicitly accepted the arbitration clause contained in the general terms and conditions by way of several written confirmations. The Bundesgericht dismissed the complaint and confirmed the lower court’s decision refusing enforcement of the award. The Bundesgericht noted that the parties disputed whether there was an agreement in writing in the terms of Article II(2) NYC, as required for the recognition of foreign arbitral awards pursuant to Article II(1) NYC. The Bundesgericht held that under Article IV(1)(b) NYC the burden was upon the Applicant to provide to the court not only the arbitral award, but also an arbitration agreement which met the form requirements of Article II(2) NYC. It further noted that contrary to what the Applicant seemed to allege, the burden of proof was reversed only in the context of Article V NYC, which describes the grounds under which the recognition and enforcement of a foreign arbitral award may exceptionally be refused. The Bundesgericht concluded that the Applicant had failed to prove that there existed an arbitration agreement in accordance with the form requirements under Article II(2) NYC, while noting that the Applicant had not asserted that the arbitration agreement was contained in the charter party. Moreover, the Bundesgericht found that the Applicant had failed to establish that there existed an exchange of letters containing the arbitration clause since it had failed to provide evidence that the Respondent had received the document containing the arbitration clause, or that there were other circumstances due to which the Respondent would have had knowledge of the arbitration clause. The Bundesgericht thus concluded that it could not be assumed that the Respondent, through its confirmation letters, had implicitly accepted the arbitration clause. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1417&opac_view=6 Attachment (1)
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Author(s) Gabrielle Nater‐Bass Source 20 ASA Bulletin 427 (200) 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 : 773298703 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4235&opac_view=6
Country Switzerland Court Switzerland, Tribunal cantonal de Vaud Date 31 October 2001 Parties Football Club v. L et AG Source Original decision obtained from the registry of the Tribunal cantonal de Vaud
Languages English Summary An arbitration agreement was contained in a transfer contract between a football player L, the Football Club and AG. The contract provided for the arbitral jurisdiction of the Swiss Football Association (SFA) in accordance with its by-laws. A dispute arose and AG seized the Tribunal cantonal de Vaud (Tribunal of Vaud). The Tribunal de première instance of Vaud (Tribunal of First Instance of Vaud) found that it had jurisdiction over the dispute since it was a labour contract and the arbitration agreement ought to be strictly construed. The Football Club appealed. The Chambre des Recours du Tribunal cantonal de Vaud (Appellate Court of the Tribunal cantonal de Vaud) confirmed the previous decision finding that Swiss courts had jurisdiction over the dispute. It first determined that the arbitration agreement was not binding on AG since it was affiliated to neither the SFA nor to the FIFA, whose by-laws contained the arbitration agreement. Regarding the validity of the arbitration agreement between L and the Football Club, the Chambre des Recours first distinguished between domestic and international arbitration. It held that where the arbitral tribunal had its seat in Switzerland, the arbitration would be domestic, whereas if the seat was abroad, the arbitration would be international and the NYC would apply. In the present case, the arbitration agreement provided for arbitration under the SFA, which was seated in Bern. The Chambre des Recours concluded that the NYC did not apply as the seat was not in Switzerland. It examined the validity of the arbitration agreement under Swiss national law. It found that the arbitration agreement was invalid because it had not been established that the player had been aware of the arbitration agreement. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=913&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 14 May 2001 Parties Fomento de Constucciones y Contratas SA v. Colon Container Terminal SA Case number 4P.37/2001 Applicable NYC Provisions II | II(3) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary A contract for the provision of engineering works provided for arbitration. A dispute arose and each party sought to terminate the contract. FCC filed an action against CCT before the courts of Panama; CCT argued that the court did not have jurisdiction due to the arbitration agreement. CCT instituted arbitral proceedings which progressed at the same time as the action before the Panamanian courts. FCC applied to the Swiss Federal Tribunal, arguing that the arbitral tribunal should not have upheld its jurisdiction and that, in any event, it did not have jurisdiction to uphold. The Swiss Federal Tribunal allowed the appeal and annulled the arbitral award. The Federal Tribunal treated the existence of two contradictory decisions between the same parties and on the same action as contrary to public policy (2.a). The principle of lis pendens means that the tribunal seized second must not exercise its jurisdiction until a final decision is rendered by the tribunal seized first (2.a). The tribunal confirmed the power of a court to decide whether the arbitration agreement is valid, pursuant to Article II(3) NYC (2.ee). Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=566&opac_view=6 Attachment (2)
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Country Switzerland Court Switzerland, Tribunale Federale (Federal Tribunal) Date 29 August 2000 Parties B. SA v. S. Case number 5P.246/2000 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=4589&opac_view=6 Attachment (1)
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Country Switzerland Court Switzerland, Tribunal fédéral (Federal Tribunal) Date 21 March 2000 Case number 5P.371/1999 Applicable NYC Provisions V | V(1) | V(1)(e) | V(2) | V(2)(b) Source http://www.bger.ch (website of Swiss Federal Tribunal)
Languages English Summary An arbitration tribunal in London ordered B to pay S; relying on that award, S applied to the High Court in London for B to be wound up. The High Court so ordered but its decision was reversed on appeal because there was a counterclaim from B against S which remained undecided. S sought to enforce the award in Switzerland; the decision of the Tribunal of First Instance to enforce the award was reversed on appeal on the basis of the Court of Appeal’s decision in London. S appealed. The Swiss Federal Tribunal allowed the appeal. Considering Article V(1)(e) NYC, the Tribunal stated that ‘recognition and enforcement must be refused if the award has been suspended’ in the country of origin. It noted that the decision of the Court of Appeal in London did not amount to a suspension of the award’s enforcement and that the Court of Appeal did not cast doubt on the award’s validity. Article V(1)(e) NYC was therefore inapplicable (2.b) Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=565&opac_view=6 Attachment (2)
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