Switzerland / 14 February 2011 / Switzerland, Bundesgericht / 4A_508/2010
| 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 The Bundesgericht repealed the Appellationsgericht’s decision and remanded the matter back to it for a new decision, finding that the Appellationsgericht’s reasoning was incomplete and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. |
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