SWITZERLAND Law and Practice Contributed by: Simon Gabriel, Axel Buhr, Roxane Schmidgall and Audrey Duffner, GABRIEL Arbitration
Against the background of the right to be heard, the arbitral tribunal is required to consider evidence that was offered in accordance with the procedural rules. 8.3 Powers of Compulsion As previously mentioned, the arbitral tribunal may seek the assistance of the state courts with respect to the taking of evidence (see 8.2 Rules of Evidence ). If relevant evidence is not under the control of either party, there may be no other option than to seek assis - tance from a state court, even though it is rarely seen in practice. Since the revision in 2021 (see 2.2 Chang- es to National Law ), the Swiss state courts will also assist arbitral tribunals and parties (upon approval by the arbitral tribunal) to arbitration proceedings with a place of arbitration outside Switzerland with the taking of evidence (Article 185a of the PILA). However, if relevant evidence is under the control of a party, tribunals may anticipate a so-called adverse inference if the evidence is not produced, rather than seeking the assistance of the state courts. Swiss arbitration proceedings are confidential in the sense that they are not open to the public (express - ly confirmed by the Swiss Federal Tribunal in con - nection with the “Causa Pechstein” in decision No 4A_612/2009, paragraph 4.1). Furthermore, it is widely acknowledged that, based on the arbitrators’ agreement with the parties (receptum arbitri), arbitrators have a duty to keep any information from the arbitration proceedings confidential. 9. Confidentiality 9.1 Extent of Confidentiality At the same time, legal scholars have controversially discussed whether, and to what extent, the parties themselves have any confidentiality duties arising out of the arbitration agreement. If the arbitration agree - ment (including arbitration rules potentially referred to) does not address the issue of confidentiality, it is difficult to find a legal basis for a respective duty between the parties, as the Swiss lex arbitri is silent on this issue. Nevertheless, some Swiss commenta - tors suggest that any arbitration agreement should
be interpreted to the effect that the mere existence of arbitration proceedings is not confidential, while any materials submitted in the proceedings as well as the award should be considered confidential. The Swiss Rules, for example, provide for a general confidentiality provision in Article 44, whereas the ICC Rules do not.
10. The Award 10.1 Legal Requirements
Article 189.1 of the PILA provides that the arbitral award shall be made in the form, and according to the procedure, agreed upon by the parties. Article 189.2 of the PILA provides that, in the absence of any agreement between the parties, the following requirements apply: • The award shall be made by majority vote or, in the absence of any majority, by the president of the arbitral tribunal. • The award shall be in written form (the signature of the president is sufficient) and show the date on which it is rendered. • The award shall be reasoned (at least with respect to the most relevant arguments of the parties). 10.2 Types of Remedies As a general rule, the arbitral tribunal may, and shall, award what is owed pursuant to the applicable sub - stantive law. At the same time, there are some limits that must be considered. First, any arbitral award rendered in Switzerland must remain within the boundaries of Swiss public policy (the so-called ordre public). Any legal consequences that are not in line with Swiss public policy must not be awarded, and such an award would be at risk of being set aside by the Swiss Federal Tribunal. There are indications that punitive damages might be con - sidered as an infringement of Swiss public policy by the Swiss Federal Tribunal (see, for example, the decision of the Swiss Federal Tribunal No 122 III 463, paragraph 5.c.cc).
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