SWITZERLAND Law and Practice Contributed by: Simon Gabriel, Axel Buhr, Roxane Schmidgall and Audrey Duffner, GABRIEL Arbitration
graph 2.4 (with further references; see also 3.1 Enforceability ). Moreover, the Swiss Federal Tribunal has in the past also accepted an extension of an arbitration agreement to non-signatories based on the group of companies doctrine. In the decision of the Swiss Federal Tribunal No 4A_450/2013, paragraphs 3.2 and 3.5.5.1.1, the court found that the companies of a group had cre - ated an appearance of adhering to the contracts by not making it clear that they did not want to be bound by such contracts and by behaving as if they were. On such basis, the parent company had created the appearance that it was a party to the contracts and thus the arbitration agreement. In the context of situations with intentional interfer - ence by a third party, the Swiss Federal Tribunal has (partly) quashed an award in which an arbitral tribu - nal had extended the arbitration agreement of a main contractor to a subcontractor (decision of the Swiss Federal Tribunal No 4A_124/2020, paragraph 3.3.2). The key holding of the decision is that a party’s offi - cially communicated position as a subcontractor out - weighs actions by that party that might otherwise be deemed sufficient to extend the arbitration agreement. This clarification is welcome and likely to be relevant in practice regarding projects or supply chains with main contractors and subcontractors. Article 183 of the PILA expressly authorises arbitral tribunals to order interim measures, unless the parties agreed otherwise in the arbitration agreement. Interim measures in the sense of the PILA would be measures of a temporary nature that aim to maintain the status quo between the parties while a dispute is pending, safeguard the arbitral process (eg, by pre - serving evidence), or preserve assets in order to sat - isfy a subsequent award (eg, security for costs). Even though it is not expressly excluded according to the terms of the PILA, Swiss arbitral tribunals would be very reluctant to order anti-suit injunctions as there 6. Preliminary and Interim Relief 6.1 Types of Relief
in order to enable an early challenge in this respect (Article 186.3 of the PILA). 5.4 Standard of Judicial Review for Jurisdiction/Admissibility The Swiss Federal Tribunal has the authority to con - duct a comprehensive examination of jurisdictional matters, specifically concerning the correct applica - tion of the law. However, it has no authority to review the arbitral tribunal’s findings on the facts of the case (see also 5.2 Circumstances for Court Intervention ). According to statistics in 2021, only 12.3% of all juris - dictional challenges have been successful since the PILA was introduced in 1989 (see Dasser/Wojtowicz, Swiss International Arbitral Awards Before the Fed - eral Supreme Court – Statistical Data 1989-2019, ASA Bull. 1/2021, p 19), so it appears fair to conclude that the Swiss Federal Tribunal has remained deferent to reasonable jurisdictional decisions of arbitral tribunals. 5.5 Breach of Arbitration Agreement Swiss courts will deny state court jurisdiction and the party that commenced state court proceedings in breach of an arbitration agreement will have to restart the proceedings before an arbitral tribunal (see also 3.3 National Courts’ Approach ). 5.6 Jurisdiction Over Third Parties In general, the Swiss Federal Tribunal has accepted extensions of arbitration agreements to non-signato - ries in the following situations: • if an assignment of a claim, an assumption of a debt or a transfer of a contract takes place; • if a third party intentionally interferes with the performance of a contract in full knowledge of the fact that this contract contains an arbitration agree - ment; or • if a contract for the benefit of a third party is con - cluded; the third party then also needs to respect an arbitration agreement (unless otherwise stated in that arbitration agreement). A summary of this jurisprudence can be found in the decisions of the Swiss Federal Tribunal Nos 4A_627/2011, paragraph 3.2 and 145 III 199, para -
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