Switzerland / 21 March 1995 / Switzerland, Bundesgericht / 5C.215/1994/lit
| Country | Switzerland |
| Court | Switzerland, Bundesgericht |
| Date | 21 March 1995 |
| Case number | 5C.215/1994/lit |
| Applicable NYC Provisions | I | I(1) | II | V | V(1) | V(1)(a) |
| Source |
Original decision obtained from the registry of the Bundesgericht |
| Languages | English |
| Summary | A Swiss insurance company and a Swedish company concluded various reinsurance agreements of which only one contained an arbitration clause, providing for arbitration in Stockholm and the application of Swedish law. A dispute arose and the Swedish company filed claims before the Handelsgericht (Court of Commerce) Zürich against the Swiss insurance company based on four reinsurance agreements that did not contain arbitration clauses. The Swiss insurance company contested the jurisdiction of the Handelsgericht on the ground that the arbitration agreement contained in the one reinsurance agreement also applied to the four reinsurance agreements in dispute. The Handelsgericht rejected the Swiss insurance company’s jurisdictional objection. The Swiss insurance company appealed to the Bundesgericht (Swiss Federal Tribunal) seeking a declaration that the Handelsgericht was not competent to adjudicate the claims, arguing that in deciding about its jurisdictional objection the Handelsgericht had erred by applying Swiss law, rather than Swedish law (i.e. the applicable law at the seat of the arbitration). The Bundesgericht repealed the Handelsgericht’s decision and remanded it to the Handelsgericht. The Bundesgericht found that even though the NYC dealt with the recognition and enforcement of arbitral awards (Article I(1) NYC), it was also applicable where the existence of an arbitration agreement was raised as a defense in Swiss court proceedings and that the validity of the arbitration agreement was to be determined in accordance with the NYC. It noted that it was not disputed between the parties whether the arbitration clause met the formal requirements under Article II NYC, and that the only question in dispute was the objective scope of the arbitration agreement contained in only one of the reinsurance agreements, i.e. whether that arbitration clause was also meant to apply to the other reinsurance agreements not containing any dispute settlement provisions. The Bundesgericht noted that, to the extent that it was applicable, the NYC had precedence over Swiss law, but that there was no consensus in Swiss law, whether the NYC should also be applied to questions which were not specifically addressed in the NYC, e.g. the objective scope of an arbitration agreement. The Bundesgericht concluded that the NYC needed to be applied to all issues regarding the validity of an arbitration agreement, including issues which were not directly regulated in the NYC. Accordingly, the Bundesgericht found that the objective scope of the arbitration agreement was to be determined in accordance with the choice of law rule contained in Article V(1)(a) NYC, which in the present case required the application of Swedish law as the law applicable at the seat of the arbitration, rather than the Swiss law as the lex fori. The Bundesgericht thus concluded that the Handelsgericht had erred in applying Swiss law to decide the jurisdictional objection raised by the Swiss company. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
