SWITZERLAND Law and Practice Contributed by: Simon Gabriel, Axel Buhr, Roxane Schmidgall and Audrey Duffner, GABRIEL Arbitration
er, the competent court will examine as a preliminary question within the specific enforcement procedure whether the requirements of the New York Conven - tion are fulfilled. The applicable state court jurisdiction and the details of the enforcement procedure are provided for in Articles 335 et seqq of the CPC and the Swiss Debt Enforcement and Insolvency Act (DEBA). 12.3 Approach of the Courts Swiss courts are rightly considered to be arbitration- friendly and there are rarely any public policy concerns that would impede enforcement of an arbitral award. In particular, neither the mere possibility to challenge a foreign award nor the mere filing of an appeal at the foreign seat constitutes a ground for refusal under Article V.1.e of the New York Convention (see decision of the Swiss Federal Tribunal No 135 III 136, para - graph 2.2). Rather, it is, in line with Article IV of the New York Convention, up to the discretion of the com - petent state court to decide whether the enforcement proceedings should be stayed until ongoing setting- aside proceedings at the foreign seat are resolved. 13. Miscellaneous 13.1 Class Action or Group Arbitration Collective arbitration procedures do not exist and requests for representative relief cannot be submit - ted to arbitration in Switzerland. Subject to a very limited number of exceptions, claim - ants are not entitled to submit any claims but their own to arbitration. Likewise, Swiss awards strictly entitle and bind the parties to the arbitration only. 13.2 Ethical Codes All qualified Swiss lawyers who are registered to represent parties in state courts must comply with Switzerland’s professional rules, including its ethical provisions. The entirety of their contentious and non- contentious legal work (whether in or out of court) must be in line with these professional rules. This includes, as a general rule, any work as an arbitrator
or counsel in arbitration proceedings, including cases with a place of arbitration outside Switzerland. International soft law (such as the IBA International Principles on Conduct for the Legal Profession or the IBA Guidelines on Party Representation in Inter - national Arbitration) is often viewed with scepticism (with the exception of the IBA Guidelines on Conflicts of Interest in International Arbitration, which are also used by the Swiss Federal Tribunal as guidelines, as mentioned above; see 4.5 Arbitrator Requirements ). 13.3 Third-Party Funding Third-party funding is not specifically addressed by Swiss statutory laws or Swiss arbitration law. However, the possibility of third-party funding and its limitations have been confirmed and analysed by the Swiss Fed - eral Tribunal numerous times (decisions of the Swiss Federal Tribunal Nos 131 I 223 and 2C_814/2014). Third-party funding must not prevent Swiss lawyers from acting in line with the professional rules. As in all other cases, Swiss lawyers must act independently, keep client-related information confidential, and avoid conflicts of interest. In addition, Swiss lawyers must comply with the following limitations for success fee arrangements, which have been highlighted by the Swiss Federal Tribunal in the past (decision of the Swiss Federal Tribunal No 2C_205/2019, paragraph 3.2): • The fees that are not performance-related must cover the lawyer’s costs and include a reasonable profit margin. • The performance-related fees must not be higher than the fees that are not performance-related. • The success fee arrangement must be made either at the beginning or after the completion of the case. During the proceedings, lawyers must not enter into success fee arrangements with their clients. 13.4 Consolidation Consolidation is not specifically addressed by Swiss arbitration law. Consolidation of compatible proceed - ings is possible, and usually governed by institutional rules (eg, by Article 7 of the Swiss Rules).
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