SWITZERLAND Law and Practice Contributed by: Simon Gabriel, Axel Buhr, Roxane Schmidgall and Audrey Duffner, GABRIEL Arbitration
5. Jurisdiction 5.1 Challenges to Jurisdiction
• reasonable doubts with respect to impartiality and/ or independence; • a failure to meet characteristics provided for in the arbitration agreement; and • any further reasons provided for in the arbitration agreement. If the parties have not agreed otherwise and the arbi - tration proceedings are still pending, a time limit of 30 days for the submission of the challenge applies, run - ning from the point in time when a party has, or could have in exercising due diligence, learned about the respective reasons (Article 180a.1 of the PILA). Once the challenge has been submitted to the arbitrator(s), there is a further 30-day period for bringing the chal - lenge to the state court, which will render the final decision (Article 180a.2 of the PILA). The arbitral tri - bunal may proceed without excluding the challenged arbitrator until there is a decision in the challenge pro - ceedings, unless the parties have agreed otherwise (Article 180a.3 of the PILA). Also, Article 180b of the PILA provides additional rules for the removal of arbi - trators upon joint agreement of the parties or unilater - ally – that is, by a single party – specifically in cases where an arbitrator is deemed unfit for duty. 4.5 Arbitrator Requirements According to Article 180 of the PILA and pertinent jurisprudence of the Swiss Federal Tribunal, arbitra - tors must be independent and impartial, comparable to state court judges (see, for example, the deci - sion of the Swiss Federal Tribunal No 4A_236/2017, paragraph 3.1.1). The Swiss Federal Tribunal takes note of the IBA Guidelines on Conflicts of Interest in International Arbitration on a case-by-case basis, but does not consider itself to be bound by any standards noted therein (see, for example, the decision of the Swiss Federal Tribunal No 147 III 65). If an arbitrator does not meet the required (high) standard of independence and impartiality, any award that was rendered with their participation risks being set aside.
The arbitral tribunal can assess whether it is com - petent to make a decision on the merits of a dispute (Article 186.1 of the PILA: so-called competence- competence). When making use of its competence- competence, the arbitral tribunal may render a deci - sion on its jurisdiction even in lis pendens situations (ie, where the same matter is already pending before a state court or a different arbitral tribunal). In such lis pendens situations, the arbitral tribunal is not required to stay its arbitration proceedings, unless justified by substantial grounds (Article 186.1bis of the PILA). 5.2 Circumstances for Court Intervention The Swiss Federal Tribunal is the only judicial instance that has the power to review any decision on jurisdic - tion (whether positive or negative) in potential chal - lenge proceedings, if a respective objection is brought forward by a party (Article 191 of the PILA). If not chal - lenged, a negative ruling on jurisdiction by the arbitral tribunal becomes final, with the effect that the same matter cannot validly be submitted (again) to arbitra - tion. The Swiss Federal Tribunal freely assesses the accu - rate application of the law in this respect. At the same time, it is not in a position to review the findings of an arbitral tribunal with respect to the facts underlying Only arbitral awards are subject to challenge proceed - ings and thus also to challenges with respect to the jurisdiction of an arbitral tribunal. At the same time, the parties are required to object to arbitral jurisdic - tion in their first submission on the merits. Other - wise, the jurisdictional challenge will be barred due to an assumed tacit agreement to arbitral jurisdiction ( materielle Einlassung see also 3.3 National Courts’ Approach for the same requirement before state courts). If arbitral jurisdiction is disputed in arbitration pro - ceedings, the arbitral tribunal is generally required to decide on its jurisdiction in a preliminary award, the award on jurisdiction. 5.3 Timing of Challenge
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