SWITZERLAND Law and Practice Contributed by: Simon Gabriel, Axel Buhr, Roxane Schmidgall and Audrey Duffner, GABRIEL Arbitration
7. Procedure 7.1 Governing Rules Articles 182 to 185a of the PILA provide a few general rules on arbitral procedure. As a matter of mandatory procedural law, Article 182.3 of the PILA provides that, in any event, arbitral tribu - nals need to safeguard the parties’ equal treatment as well as their right to be heard in adversarial pro - ceedings. In this context, Article 182.4 of the PILA expressly stipulates that a party that continues the proceed - ings without objecting to an infringement against the procedural rules immediately after it took, or could have taken, notice thereof will later be precluded from As long as the parties are treated equally and their right to be heard in adversarial proceedings is safe - guarded, Swiss law does not prescribe any particular procedural steps. At the same time, it should be noted that the right to be heard in adversarial proceedings guarantees the following minimum standard of participation in arbitra - tion proceedings: • the opportunity to submit arguments on the merits of the case in accordance with the procedural rules; • participation in oral hearings, if any; • access to records; and • the opportunity to comment on the arguments of the other party. 7.3 Powers and Duties of Arbitrators The arbitral tribunal has the power to order the individ - ual procedural steps in the event that the parties have not reached any agreements regarding the procedure (Articles 182.1 and 182.2 of the PILA). In this respect, and as previously mentioned, the arbitral tribunal is required to treat the parties equally and grant them the right to be heard in adversarial proceedings (see also 7.1 Governing Rules and 7.2 Procedural Steps ). invoking that infringement. 7.2 Procedural Steps
is no legal tradition of applying this measure in Swit - zerland. The arbitral tribunal may require a security from the party requesting interim measures in order to secure potential damages from the party against which the order is directed (Article 183.3 of the PILA). Emergency arbitration proceedings in Switzerland are mostly conducted under the ICC Rules or the Swiss Rules. In this respect, it should be noted that under the Swiss Rules, ex parte applications are also admis - sible before emergency arbitrators. 6.2 Role of Courts If a party does not voluntarily comply with an interim measures order from an arbitral tribunal, the state courts may assist in the enforcement of the order upon request of the arbitral tribunal or a party (Article 183.2 of the PILA). The state courts also support arbi - tral tribunals of, and parties to, arbitration proceedings with a place of arbitration outside Switzerland (i) to implement preliminary or securing measures (Article 185a.1 of the PILA), or (ii) in the taking of evidence (in the case of a party, only upon approval by the arbitral tribunal) (Article 185a.2 of the PILA). 6.3 Security for Costs According to a large majority of legal commentators, arbitral tribunals are in a position to order security for costs in the sense that (typically) the impecuni - ous claimant would have to provide security for the potential procedural costs of the respondent. While the specific requirements remain a topic of debate among legal scholars, the majority of them contend that for security for costs to be ordered, there must have been a deterioration in the financial posi - tion of the party against whom the request is directed (usually the claimant) since the time the arbitration agreement was executed. This means that any party that chooses to contract with an impecunious coun - terparty (eg, a shell company or special-purpose vehi - cle) risks that eventually no security for costs will be granted.
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