SWITZERLAND Law and Practice Contributed by: Simon Gabriel, Axel Buhr, Roxane Schmidgall and Audrey Duffner, GABRIEL Arbitration
ceedings (see 7.1 Governing Rules ). Accordingly, the arbitral tribunal must, as a rule, notify the other party of the correction request before the correction of the award. In a recent decision, the Swiss Federal Tribunal set aside an interpretation of an award because the arbitral tribunal had omitted to notify the other party of the respective request before it issued its inter - pretation (decision of the Swiss Federal Tribunal No 4A_603/2023, paragraph 4.4). 11.2 Excluding/Expanding the Scope of Appeal If no party is domiciled in Switzerland, the parties may exclude (fully or partially) any setting-aside or revi - sion proceedings (Article 192 of the PILA). As is the case with the arbitration agreement, such exclusion must be evidenced by text (so-called text form, Article 178.1 of the PILA) (see 3.1 Enforceability ). However, the parties may not exclude a revision on the ground of criminal behaviour that affected the award (Article 192.1 of the PILA) (see the decision of the Swiss Fed - eral Tribunal No 148 III 436, paragraphs 4.3.3, and 11.1 Grounds for Appeal ). If the parties wish to expand the scope of review of a higher instance, they have the possibility to agree on an appeal mechanism before a second arbitral tribu - nal, but the Swiss Federal Tribunal will review setting- aside applications only as defined in Article 190.2 of the PILA. 11.3 Standard of Judicial Review The Swiss Federal Tribunal does not review the mer - its of the case, unless it is indispensable in order to review issues of (i) arbitral jurisdiction or (ii) substan - tive public policy.
inadmissible. Specifically, the Swiss Federal Tribu - nal named the following five individual conditions that must be fulfilled under the pertinent ground for revision (decision of the Swiss Federal Tribunal No
4A_422/2021, paragraph 4.4.1). • One or more facts were alleged.
• The alleged facts must be material to the outcome of the case. This is the case if they modify the fac - tual basis of the award in the sense that the correct application of the law on the (modified) facts leads to a different legal solution and thus to a different award. • The relevant facts already existed at the time when the award was rendered. • The relevant facts were only discovered at a later point in time. • The applicant was not in a position – in spite of all its diligence – to rely on these facts during the arbitration proceedings. In a recent decision, the Swiss Federal Tribunal applied Article 190a of the PILA to a request to revise an arbi - tral award released after 1 January 2021 (see decision of the Swiss Federal Tribunal No 4A_46/2024). In this decision, the Swiss Federal Tribunal denied the appli - cation of Article 190a of the PILA to the admissibility of a written confession that had arisen after the arbitral award but related exclusively to facts that had already occurred before. In conclusion, the revision is not merely a theoreti - cal concept; it is a legal remedy with very specific requirements, offering a mechanism to review awards alongside the ordinary setting-aside application under Article 190.2 of the PILA. Correction of Awards Finally, Article 189a.1 of the PILA provides for the right of a party to request from the arbitral tribunal the cor - rection of typos, the explanation of unclear or ambigu - ous considerations and the rendering of an additional award on any claims not dealt with. In the respective proceedings (ie, after the award was issued), the arbitral tribunal is bound by the funda - mental procedural guarantees, and in particular the parties’ right to be heard, just as in the main pro -
12. Enforcement of an Award 12.1 New York Convention
Switzerland has signed and ratified the New York Con - vention (without reservations; see also 3.1 Enforce- ability ). 12.2 Enforcement Procedure Enforcement of an arbitral award does not require a separate recognition procedure in Switzerland. Rath -
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