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Switzerland / 26 February 1982 / Switzerland, Bundesgericht / Joseph Müller AG v. Bergesen und Obergericht (II. Zivilkammer) des Kantons Zürich

Country	Switzerland
Court	Switzerland, Bundesgericht
Date	26 February 1982
Parties	Joseph Müller AG v. Bergesen und Obergericht (II. Zivilkammer) des Kantons Zürich
Applicable NYC Provisions	V | V(1) | V(1)(d) | V(1)(e) | V(2) | V(2)(b)
Source	http://www.bger.ch (website of Swiss Federal Tribunal)
Languages	English
Summary	The parties concluded several charter parties all of which contained an arbitration clause providing for arbitration in New York City, under New York law, and stating that any arbitral award rendered under the agreement was to be enforceable by any competent court and was to be finally effective and binding on the parties in any country. The Respondent obtained a favorable award against the Applicant, which, upon the Respondent’s application, the Bezirksgericht (Regional Court) Zurich declared to be enforceable. The Applicant’s appeal to the Obergericht (Higher Cantonal Court) Zurich was rejected, after which the Applicant filed a complaint before the Bundesgericht (Swiss Federal Tribunal), requesting that the Bezirksgericht’s decision be annulled and the matter remanded to the Obergericht for a new decision. The Applicant contended that the Obergericht had violated Article V(1)(e) NYC since it had wrongly held the award to be binding even though under New York law an award did not become binding and enforceable until it had been confirmed by a state court. The Bundesgericht dismissed the Applicant’s complaint, stating that the Applicant carried the burden of proving that the award had not become binding under Article V(1)(e) NYC. It found that whether an award had become binding on the parties was primarily a question to be determined according to the law applicable to the arbitral proceedings, which, as evidenced by Article V(1)(d) NYC, consisted primarily of the rules agreed upon by the parties and, in the absence of any such agreed rules, the law of the state where the arbitral proceedings were seated. The Bundesgericht further stated that the parties’ right to freely design the applicable procedural rules also included the parties’ right to declare certain mandatory state procedures to be inapplicable and to substitute them by their own rules, as long as this did not violate the public policy of the enforcement state under Article V(2)(b) NYC. The Bundesgericht noted that as long as the arbitral award was not appealable under the applicable procedural law, Swiss public policy did not provide any reason for refusing enforcement in Switzerland. The Bundesgericht concluded that in the present case the parties had agreed on New York law but had also agreed that the award should be enforceable by any competent court and be finally effective and binding on all parties in any country, which in turn meant that the award would become binding not after confirmation under New York law, but as of its issuance. The Bundesgericht added that the Applicant had failed to show that the alleged requirement to confirm the award under New York law was compatible with the parties’ arbitration agreement. The Bundesgericht further stated that even if the award was not declared enforceable at the place where it was issued, it could be binding on the parties and that a mandatory requirement to declare an award enforceable at its seat would run counter to the objective of the NYC to avoid double exequatur. According to the Bundesgericht, it was sufficient that the award was susceptible to exequatur at the arbitral seat. Finally, the Bundesgericht stated that the Applicant’s expert, who had considered an “unconfirmed award” to be a “mere expectation” had only considered the award in the light of New York law but not in the light of the NYC.
affirms :	Switzerland / 08 December 1980 / Switzerland, Obergericht des Kantons Zürich / II.ZK.Nr. 8 A/80
Link to the record	https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1424&opac_view=6

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Switzerland / 08 December 1980 / Switzerland, Obergericht des Kantons Zürich / II.ZK.Nr. 8 A/80

Country	Switzerland
Court	Switzerland, Obergericht des Kantons Zürich
Date	08 December 1980
Case number	II.ZK.Nr. 8 A/80
Applicable NYC Provisions	II | IV | IV(2) | V | V(1) | V(1)(e)
Source	Original decision obtained from the registry of the Obergericht des Kantons Zürich
Languages	English
Summary	The parties concluded several charter parties all of which contained an arbitration clause providing for arbitration in New York City, under New York law, and stating that any arbitral award rendered under the agreement was to be final and binding on the parties in any country. The Respondent obtained a favorable award against the Applicant, which, upon the Respondent’s application, the Bezirksgericht (Regional Court) Zurich declared to be enforceable. The Applicant appealed to the Obergericht (Higher Cantonal Court) Zurich contending that the arbitral award had not become binding since, under Section 7510 of the applicable New York Civil Practice Law and Rules (“CPLR”), it had to have been confirmed by a New York court within one year of having been served on the parties and that such time limit had now passed. The Respondent argued that the NYC only required that the award had become binding, but not that it could be enforced under the CPLR. The Respondent also argued that the report of the legal expert submitted by the Applicant in support of the alleged confirmation requirement should be rejected since it was not accompanied by a certified translation. The Obergericht dismissed the appeal. It noted that the Respondent had followed its interim order to provide a certification by the County Clerk of the State of New York that the notary public who had certified the copy of the award was competent to do so, along with a certification of the County Clerk’s signature by the Swiss Diplomatic representation in New York. On that basis, the Obergericht concluded that the formal requirements under Article IV and II NYC were fulfilled. The Obergericht rejected the Respondent’s request to exclude the Applicant’s expert report for lack of a certified translation reasoning that, unlike Article IV(2) NYC, Article V NYC did not require evidence against the enforceability of arbitral awards to be submitted in the form of a certified translation, rather, it was up to the court to obtain such translations if they were needed. Regarding the Applicant’s objection under Article V(1)(e) NYC, the Obergericht found that the award was to be considered binding even though it had not been confirmed by the competent court in New York since the “confirmation” under Section 7510 CPLR only had the meaning of a declaration of enforceability rather than being a decision about the arbitral award’s binding effect. The Bundesgericht held that in proceedings under the NYC for enforcement of a New York award in another contracting state of the NYC, the confirmation proceedings under the CPLR were effectively substituted by Article IV NYC since the enforcement creditor would otherwise be forced to pursue a double exequatur. The Obergericht concluded that an award was not binding under the NYC only in the event that the losing party had sought vacatur or modification of the award under Section 7511 CPLR within the applicable time limit, or if the competent New York court had indeed annulled or modified the award. The Obergericht clarified that a party’s right to request vacatur or modification of the award under the CPLR was available even in relation to arbitration agreements which state that the arbitral award shall be “finally effective,” since the right to such proceedings could not be waived by the parties.
affirmed by :	Switzerland / 26 February 1982 / Switzerland, Bundesgericht / Joseph Müller AG v. Bergesen und Obergericht (II. Zivilkammer) des Kantons Zürich
Link to the record	https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1425&opac_view=6

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Switzerland / 08 February 1978 / Switzerland, Tribunal Fédéral (Federal Tribunal) / X SA v. Y Ltd / P. 217/76

Country	Switzerland
Court	Switzerland, Tribunal fédéral (Federal Tribunal)
Date	08 February 1978
Parties	X SA v. Y Ltd
Case number	P. 217/76
Applicable NYC Provisions	V | V(1) | V(1)(b) | V(1)(d) | V(2) | V(2)(b)
Source	Original decision obtained from the registry of the Tribunal Fédéral
Languages	English
Summary	An International Chamber of Commerce (ICC) award was rendered on 1 October 1973, in The Hague, in favor of Y against X. Y sought enforcement of the award in Switzerland pursuant to Article IV NYC by producing the original award, its sworn translation and the original contract containing the arbitration agreement. X challenged the enforcement on the grounds that the award violated public policy under Article V(2)(b) NYC, as the arbitrators had consulted an expert in the chrome industry in the absence of the parties. The Tribunal de première instance of Geneva (Geneva Tribunal of First Instance) denied enforcement on the ground that the arbitral procedure was not in accordance with the arbitration agreement. On appeal, the Cour de Justice of Geneva (Geneva Court of Appeal) overturned the decision and allowed the enforcement of the award. X appealed, invoking a violation of Articles V(1)(b) and V(1)(d) NYC. The Tribunal Fédéral (Federal Tribunal) confirmed the decision of the Cour de Justice of Geneva and allowed the enforcement of the award. The Tribunal Fédéral confirmed that the NYC was applicable to govern the enforcement procedure of an award rendered in the Netherlands, a State party to the NYC. The Tribunal Fédéral differentiated between Article V(1) NYC, which lists grounds which must be raised by the party opposing enforcement while grounds under Article V(2) NYC may be raised sua ponte by the enforcing court. The Tribunal Fédéral analyzed both Articles V(1)(b) and V(1)(d) grounds under the perspective of public policy and recalled that a violation of public policy could relate to the award itself or to the procedure according to which it has been rendered and that denial of enforcement of an award could be granted only in case of a violation of the fundamental principles of the Swiss legal order. The Tribunal Fédéral held that the fact that the arbitrators sought external and professional advice on the commercial context of the dispute but not on an issue which could bring a solution to the case did not amount to a violation of fundamental principles of Swiss public policy.
affirms :	Switzerland / 17 September 1976 / Switzerland, Cour de Justice de Genève / L Ltd. v. C S.A. (GE) / 549
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Switzerland / 17 September 1976 / Switzerland, Cour de Justice de Genève / L Ltd. v. C S.A. (GE) / 549

Country	Switzerland
Court	Switzerland, Cour de Justice de Genève (Geneva Court of Justice)
Date	17 September 1976
Parties	L Ltd. v. C S.A. (GE)
Case number	549
Applicable NYC Provisions	V | V(1) | V(1)(b) | V(1)(d) | V(1)(e)
Source	Original decision obtained from the registry of the Cour de Justice de Genève
Languages	English
Summary	A contract of sale was entered into between L and C, which contained an arbitration agreement providing for International Chamber of Commerce (ICC) arbitration. A dispute arose between the parties and an award was rendered on 1 October 1973, in The Hague, in favor of L. L sought enforcement of the award in Switzerland pursuant to Article IV NYC by producing the original award, its sworn translation and the original contract containing the arbitration agreement. C opposed the enforcement on the ground that the award violated public policy pursuant to Article V(2)(b) NYC, as the arbitrators had consulted an expert in the chrome industry ex parte. The Tribunal de Première Instance of Geneva (Geneva Tribunal of First Instance) denied enforcement on the grounds that the arbitral procedure had not been in accordance with the arbitration agreement because the three arbitrators had “joined a fourth arbitrator”. L appealed the decision. C objected, claiming a violation of Article V(1)(b) NYC because it was unable to present its case, which means that the procedure was not in accordance with the agreement of the parties (Art. V(1)(d) NYC). The Cour de Justice de Genève (Court of Justice of Geneva) annulled the decision of the Tribunal de Première Instance of Geneva and allowed the enforcement of the award. The Cour de Justice of Geneva held that the NYC was applicable to determine whether C had been unable to present its case pursuant to Article V(1)(b) NYC, resulting in a violation of Article V(1)(d) NYC. It recalled that a violation of public policy could relate to the award itself or to the procedure according to which it has been rendered. The Cour de Justice added that enforcement of an award could only be denied in case of a violation of the fundamental principles of the Swiss legal order, as public policy could not be used to oust the application of international treaties. In the present case, the Cour de Justice held that the arbitrators sought external and professional advice on the commercial context of the chrome industry (which was not prohibited under Dutch law, the law of the seat the arbitration) but not on an issue which was determinative to the case. The Cour de Justice concluded that it did not amount to a violation of fundamental principles of Swiss public policy. The Cour de Justice further added that pursuant to Article V(1)(e) NYC, an award can be set aside by a competent authority in the country which, or under the law of which, that award was made. C had however not seized the competent authorities in the Netherlands.
affirmed by :	Switzerland / 08 February 1978 / Switzerland, Tribunal Fédéral (Federal Tribunal) / X SA v. Y Ltd / P. 217/76
Link to the record	https://newyorkconvention1958.org/index.php?lvl=notice_display&id=929&opac_view=6

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Switzerland / 12 December 1975 / Switzerland, Tribunal Fédéral (Federal Tribunal) / Provenda SA v. Alimenta SA / 101 Ia 521

Country	Switzerland
Court	Switzerland, Tribunal fédéral (Federal Tribunal)
Date	12 December 1975
Parties	Provenda SA v. Alimenta SA
Case number	101 Ia 521
Applicable NYC Provisions	I | I(3)
Source	http://www.bger.ch (website of Swiss Federal Tribunal)
Languages	English
Summary	Provenda, with its registered office in France, sought to enforce two arbitral awards rendered in the Great Britain against Alimenta, domiciled in Switzerland. The Tribunal of First Instance held that the clause was invalid because, inter alia, the award did not state reasons which rendered it contrary to Swiss public policy. The Court of Justice upheld the Tribunal’s decision on that point. Provenda lodged a public law appeal. The Swiss Federal Tribunal allowed the appeal. As the award was rendered in Great Britain, which was not a party to the NYC at the time, Article I(3) NYC provided that the NYC was inapplicable (2.a).
see also :	I / 2. ANALYSIS (I) / ARTICLE I(3) / a.The territorial criterion and the reciprocity reservation / §75
Link to the record	https://newyorkconvention1958.org/index.php?lvl=notice_display&id=559&opac_view=6

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Switzerland / 21 May 1975 / Switzerland, Bundesgericht (Federal Tribunal) / Verband der Schlittschuh-und Rollschuh-Sporte Jugoslawiens v. Gschwend und Kantonsgerichtspräsidium des Kantons Appenzell A.Rh.

Country	Switzerland
Court	Switzerland, Bundesgericht (Federal Tribunal)
Date	21 May 1975
Parties	Verband der Schlittschuh-und Rollschuh-Sporte Jugoslawiens v. Gschwend und Kantonsgerichtspräsidium des Kantons Appenzell A.Rh.
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=6291&opac_view=6

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Switzerland / 25 January 1967 / Switzerland, Tribunal Fédéral (Federal Tribunal) / Egetran SA v. Utexbel SA et Cour de Justice civile du Canton de Genève / 93 I 49

Country	Switzerland
Court	Switzerland, Tribunal fédéral (Federal Tribunal)
Date	25 January 1967
Parties	Egetran SA v. Utexbel SA et Cour de Justice civile du Canton de Genève
Case number	93 I 49
Applicable NYC Provisions	V | V(1) | V(1)(a) | V(1)(d) | V(1)(e)
Source	http://www.bger.ch (website of Swiss Federal Tribunal)
Languages	English
Summary	On 4 December 1950, Egetran (now Transhipping) and Utexbel (Utexbel) entered into a contract for the sale of cotton through an intermediary. The contract referred to the Professional Union Rules of the “Marché de Coton de Gand” (the Rules), which contained a clause providing for arbitration by a tribunal comprising two arbitrators with the possibility of an appeal before a tribunal comprising three arbitrators. A dispute arose and Utexbel initiated arbitration proceedings in Belgium. The arbitral tribunal ruled that it had jurisdiction over the dispute. The appellate arbitral tribunal confirmed the decision and ruled in favor of Utexbel. The award was subsequently enforced in Belgium. Utexbel sought to enforce the award in Switzerland pursuant to the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards (the 1927 Geneva Convention). Transhipping opposed enforcement on the grounds that the arbitration agreement was invalid and that the award violated public policy. The Tribunal de première instance of Geneva (Geneva Tribunal of First Instance) denied enforcement, stating that the arbitration agreement was invalid. Its ruling was subsequently overturned by the Cour de Justice of Geneva (Court of Justice of Geneva). The Tribunal Fédéral (Federal Tribunal) dismissed the appeal against the Cour de Justice’s decision. It held that the NYC did not apply since Belgium, at the time, had not ratified the NYC and that Switzerland had a reciprocity reservation in place. It therefore examined the issue of recognition and enforcement of the award under the 1927 Geneva Convention. The Tribunal Fédéral held that the law applicable to the arbitration agreement was the law of the seat of the arbitration, adding that Articles V(1)(a), V(1)(d) and V(1)(e) NYC would yield the same result. The Tribunal Fédéral stated that the issue had been settled under Belgium law and the arbitration agreement had been held to be valid. The Tribunal Fédéral added that the same conclusion would be reached under Swiss law since Transhipping had assumed all rights and obligations of Egetran, including the arbitration agreement. With respect to the public policy argument, the Tribunal Fédéral ruled that for an award to be denied enforcement there would have to be a violation of the fundamental principles of the judicial order, which was not the case here.
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E/CONF.26/L.33/Rev.1- 29/05/1958

Date	29/05/1958
Classification (first level)	B. United Nations Conference On International Commercial Arbitration: Documents
Classification (second level)	B.3. Comparison of Drafts Relating to Articles III, IV and V of the Draft Convention - 29 May 1958
Country	Netherlands | Sweden | Israel | Pakistan | France | Japan | Yugoslavia | Poland | United Kingdom | Switzerland | Italy
Applicable NYC Provisions	IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b)
Language(s)	English
Link to the record	https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3359&opac_view=6

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E/CONF.26/L.30 - Switzerland: amendment to Article 3 as amended by the Netherlands amendment (E/CONF.26/L.17)- 27/05/1958

Date	27/05/1958
Classification (first level)	B. United Nations Conference On International Commercial Arbitration: Documents
Classification (second level)	B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958
Country	Switzerland | Netherlands
Applicable NYC Provisions	V | V(1)(e)
Language(s)	French
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E/CONF.26/L.6 - Austria, Belgium, Federal Republic of Germany, France, Italy, Netherlands, Sweden, Switzerland: amendment to Article 1- 22/05/1958

Date	22/05/1958
Classification (first level)	B. United Nations Conference On International Commercial Arbitration: Documents
Classification (second level)	B.2. Amendments to the Draft Convention Submitted by Governmental Delegations : 21 -28 May 1958
Country	Austria | Belgium | France | Italy | Netherlands | Sweden | Switzerland
Applicable NYC Provisions	I
Language(s)	French
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E/2822 - Report by the Secretary-General, Recognition and Enforcement of Foreign Arbitral Awards, 31 Jan 1956- 31/01/1956

Comments	Annex I: Comments by Governements (General observations and then comments on each article) Annex II: Comments by Non-Governmental Organizations (General observations and then comments on each article).
Date	31/01/1956
Classification (first level)	A. Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Comments by Governments and Organizations
Classification (second level)	A.2. Comments by Governments and Organisations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: January 1956 - March 1958
Country	Austria | Belgium | Brazil | China | Denmark | France | India | Japan | Korea | Lebanon | Mexico | Philippines | Switzerland
Applicable NYC Provisions	I | II | III | IV | V | V(1)(a) | V(1)(b) | V(1)(c) | V(1)(d) | V(1)(e) | V(2)(a) | V(2)(b) | VII | VIII | IX | X | XI | XII | XIII | XIV | XV | XVI
Language(s)	English | French | Spanish
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Switzerland

Date of signature	29 December 1958
Date of ratification	1 June 1965
Instrument of ratification	RS 0277.12 approved by the Federal Assembly on 2 March 1965
Date of entry into force	30 August 1965
Reservations	Switzerland made a reciprocity reservation. However, pursuant to Article 194 of the Swiss Private International Law Act, the Convention applies to awards rendered abroad whether or not the country has ratified the NYC. The Federal Council withdrew the reservation by Federal Decision dated 17 December 1992 (RO 1993, 2434; RO 1993, 2439).
National Arbitration Act in force	Chapter 12 of the Swiss Private International Law Act of 18 December 1987 (as amended) [Original in French | Original in German | Original in Italian]
Domestic Court with jurisdiction over recognition and enforcement of foreign award	Court of First Instance of the Canton where recognition and enforcement is sought.
Author(s) and Contributor(s)	Republica e Cantone Ticino Pierre Viguier (Gaillard Banifatemi Shelbaya Disputes)
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