SWITZERLAND Law and Practice Contributed by: Simon Gabriel, Axel Buhr, Roxane Schmidgall and Audrey Duffner, GABRIEL Arbitration
Second, as previously mentioned (see 3.2 Arbitrabil- ity ), only claims “involving an economic interest” are arbitrable in Switzerland, so an arbitral tribunal must not award remedies for claims that fall outside the definition of arbitrability. 10.3 Recovering Interest and Legal Costs The issue of the recovery of legal costs is a matter of procedural law and is thus governed by the arbi - tration agreement (including reference to any institu - tional rules). If the arbitration agreement is silent on the allocation of legal costs but both parties request to be compensated for their legal costs, it appears reasonable to accept an implied agreement that legal costs should be allocated. If the parties do not request compensation for legal costs, the issue of the alloca - tion becomes moot, as the arbitral tribunal must not award any position that was not requested by either of the parties. Generally, Swiss tribunals allocate legal costs in pro - portion to the success of the parties on the merits of the case. Further circumstances (such as the proce - dural behaviour of the parties) are sometimes consid - ered as well. The so-called American Rule, where each party bears its own costs, is only applied if agreed upon by the parties or if the proportion of the success on the mer - its is close to 50/50. In Switzerland, an arbitral award may be set aside by the Swiss Federal Tribunal. The available grounds are expressly noted in Article 190.2 of the PILA and can be summarised as follows: • incorrect designation and/or composition of the arbitral tribunal; • inaccurate decision on arbitral jurisdiction; • the decision either does not cover all of the parties’ requests for relief (infra petita) or goes beyond the requests for relief of the parties (ultra petita or extra petita); 11. Review of an Award 11.1 Grounds for Appeal Grounds for Setting Aside Application
• violation of the principles of the right to be heard and/or equal treatment; and • incompatibility with Swiss public policy. The setting-aside application must be submitted to the Swiss Federal Tribunal within 30 days of the date of receipt of the award (Article 190.4 of the PILA), and must specifically demonstrate that at least one of the above reasons for setting aside applies to the award at issue. Since the revision in 2021, the briefs in setting- aside proceedings can be submitted in the English language (Article 77.2bis of the Federal Tribunal Act) (see 2.2 Changes to National Law ). The Swiss Fed - eral Tribunal invites the counterparty and the arbitral tribunal to submit comments (unless a setting-aside application is considered as evidently inadmissible or unfounded by the Swiss Federal Tribunal), and typi - cally decides within a timeframe of four to six months in total. Grounds for Revision Since the revision in 2021 (see 2.2 Changes to National Law ), the Swiss lex arbitri formally includes the exceptional legal remedy of the so-called revision against binding awards based on earlier jurisprudence of the Swiss Federal Tribunal (see decisions of the Swiss Federal Tribunal Nos 122 III 492 and 134 III 286), which is generally only available on limited grounds that are discovered after an award was rendered. Such limited grounds include (i) discovery of new material facts, (ii) criminal behaviour that affected the award, and (iii) discovery of new circumstances that give rise to doubts as to an arbitrator’s independence or impartiality (Article 190a.1 of the PILA). A request for revision must be submitted within 90 days of the discovery of such new facts, whereby such request has, in any event, to be submitted within ten years of the award coming into legal force, with the exception of criminal behaviour that affected the award (Article 190a.2 of the PILA). As with setting- aside proceedings, the briefs can be submitted in the English language (Article 77.2bis of the Swiss Federal Tribunal Act). In its first decision on a request for revision pursuant to Article 190a of the PILA, the Swiss Federal Tribu - nal rejected the respective application as manifestly
838 CHAMBERS.COM
Powered by FlippingBook