SWITZERLAND Law and Practice Contributed by: Simon Gabriel, Axel Buhr, Roxane Schmidgall and Audrey Duffner, GABRIEL Arbitration
unauthorised person signed a contract that includes an arbitration agreement. However, in such a situation it would be for the arbitral tribunal (and not a state court) to assess whether the arbitration agreement is valid, since the arbitral tribunal is competent to rule on its own competence (Article 186.1 of the PILA). In a recent decision (decision of the Swiss Federal Tribunal No 4A_148/2023), the Swiss Federal Tribunal confirmed that the arbitral tribunal has to individually check whether a defect exclusively affects the valid - ity of the arbitration agreement, the main contract or both of them. In this regard, the Swiss Federal Tribunal emphasised that if this question is examined under Swiss law, the capacity to act is a relative concept that must be assessed individually in relation to a specific act at a specific point in time (see Frenkel, Autonomy of Arbitration Agreements and Capacity of Judgment, ASA Bull. 1/2024, p 45 et seqq for further information on this case). In exceptional cases, an arbitration agreement in a draft contract can even be valid and binding before the main contract is signed. This is the case if an intention to be bound by the arbitration agreement can be established independently of the conclusion of the main contract (see Gabriel/Wicki, Vorvertragliche Schiedszuständigkeit – Pre-contractual Jurisdiction of Arbitral Tribunals, ASA Bull. 2/2009, p 236 et seqq for further information on this issue). The parties are free to nominate and replace any arbi - trator in line with the arbitration agreement. If the par - ties have not agreed otherwise, the arbitral tribunal shall consist of three members, whereby each party nominates one member and these members nominat- ed by the parties unanimously nominate the president of the arbitral tribunal (Article 179.1 of the PILA). However, if an arbitrator nominated by a party is not sufficiently independent and/or impartial, they may be challenged by the other party, and may be subject to removal (see 4.4 Challenge and Removal of Arbitra- tors ). 4. The Arbitral Tribunal 4.1 Limits on Selection
Against this background, a prospective arbitrator must disclose any grounds that may raise doubts as to their independence and impartiality, and this for the course of the entire proceedings (Article 179.6 of the PILA). In this regard, an arbitrator whose law firm maintains a client relationship with one of the parties may have a duty to disclose such relationship irrespective of whether such other mandate(s) bears any direct rel - evance to the case in question (decision of the Swiss Federal Tribunal No 4A_462/2021, paragraph 4.2). 4.2 Default Procedures If the parties’ chosen method for selecting arbitrators fails, they may approach the state court at the place of arbitration ( juge d’appui ) and request that itdesig - nate an arbitral tribunal. If the parties have not deter - mined the seat, or determined that the seat should be in Switzerland (without any further specification), the state court that was first seized by a party shall have jurisdiction (Article 179.2 of the PILA). In this context, Article 179.3 of the PILA specifies that if a state court is entrusted with the appointment or replacement of a member of the arbitral tribunal, it must grant that request, unless a summary exami - nation shows that no arbitration agreement between the parties exists. The state court must thereby take the required measures for the constitution of the arbi - tral tribunal at the request of a party if the parties or the (party-nominated) members of the arbitral tribu - nal do not comply with their duties within 30 days (Article 179.4 of the PILA). Also, the juge d’appui may nominate the entire arbitral tribunal in multiparty cases A state court cannot intervene in the selection of arbitrators unless an arbitrator is rightly challenged and thus removed for lack of independence and/or impartiality. Even in this case, the state court does not have the authority to name the new arbitrator. Instead, the arbitration agreement’s provisions will dictate the selection of the replacement. 4.4 Challenge and Removal of Arbitrators Article 180 of the PILA governs the challenge and potential removal of arbitrators. Reasons for challeng - ing an arbitrator include: (Article 179.5 of the PILA). 4.3 Court Intervention
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