LIECHTENSTEIN Trends and Developments Contributed by: Michael Nueber and Philipp Konzett, Nueber Konzett
sent alone, without first hearing the other party or giv - ing reasons. A failure to obtain consent does not necessarily deprive the state court of its statutory power to grant the requested measure. It may, however, have signifi - cant consequences within the arbitration. The tribunal may take appropriate remedial action at the request of the opposing party, and the unauthor - ised court application may also amount to a breach of the Liechtenstein Rules’ confidentiality obligations. This may expose the party – and potentially its coun - sel – to damages and, unless otherwise agreed, a con - tractual penalty of CHF50,000. The position is different in a purely ad hoc arbitration. Unless the parties have adopted procedural rules or agreed on a similar restriction, no prior consent from the tribunal is required before applying to the state court. Once constituted, the tribunal may itself order interim measures, but only against a party and after hear - ing that party. It also lacks coercive powers, so court assistance may still be required to enforce the meas - ure. State-court relief therefore remains particularly important before the tribunal is constituted, where an order must be made without notice, where third par - ties are affected or where immediate coercive enforce - ment is required. Drafting of the arbitration agreement as a priority Increasingly, the focus of the legal work lies on the drafting of the arbitration clause. The most effective clauses are likely to be those that reflect the particu - lar structure (foundation, trust, etc) and the expected dispute rather than relying on a standard form without further analysis. The following matters deserve particular attention in the future: • First, the seat and the chosen rules should be stated clearly. A reference to “arbitration in Liech - tenstein” may not adequately determine whether Liechtenstein is the legal seat or merely the venue for hearings.
• Second, the scope of the clause should match the relevant relationship. In private wealth structures, it should address both contractual and non-contrac - tual claims and identify the instruments and per - sons covered. At the same time, matters that are not legally arbitrable should be excluded or dealt with through a workable severability mechanism. • Third, multiparty and multi-contract situations require specific consideration. The absence of effective provisions on joinder, consolidation or co-ordinated appointments can result in parallel proceedings and inconsistent outcomes. • Fourth, the clause should preserve access to interim court relief. This is particularly important where assets or control rights may be transferred before the tribunal is constituted. Especially when choosing the Liechtenstein Rules, parties should consider to “opt-in” again and allow for interim relief from Liechtenstein courts. • Fifth, confidentiality should be addressed express - ly. The Liechtenstein Rules provide a strong confi - dentiality framework, but confidentiality should not prevent disclosures required for regulatory com - pliance, enforcement, insurance coverage or the protection of legal rights. • Finally, the arbitration clause should be reviewed together with the substantive governing law, appli - cable mandatory requirements, available interim remedies and the jurisdictions in which an award may ultimately need to be recognised or enforced. The last of these aspects is important when Liechtenstein arbitration proceedings are based on arbitration clauses that are binding on third par - ties (for example beneficiaries) as this could affect enforceability of the award abroad. Arbitration should therefore not be treated as an iso - lated procedural provision, but as an integral part of the legal architecture of the transaction or structure. Outlook Liechtenstein’s arbitration framework remains stable, while recent case law has further clarified the limits of judicial intervention. The courts continue to respect the finality of arbitral awards without treating setting- aside proceedings as an appeal on the facts or the law. At the same time, they retain an important role in examining jurisdiction, enforceability, the binding
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