SWITZERLAND Law and Practice Contributed by: Yves Klein, Monfrini Bitton Klein
4. Arbitral Awards 4.1 Legal Issues Concerning Enforcement of Arbitral Awards The main issue regarding the enforcement of domestic arbitral awards is challenge to the validity of the arbi - tration clause. The main issues regarding the enforce - ment of foreign arbitral awards are the conditions of Article V of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the “New York Convention”). 4.2 Variations in Approach to Enforcement of Arbitral Awards The enforcement of arbitral awards differs between Swiss arbitral awards, which are considered as Swiss judgments (Article 387, CPC), and foreign arbi - tral awards, which are enforced in accordance with the New York Convention, irrespective of reciprocity (Articles 194 and 195, PILA). Regarding Swiss arbitral awards, if the parties to the arbitration are all domi - ciled in Switzerland (national award), Articles 353ff of the CPC apply. If one or more parties was domiciled outside Switzerland (international awards), Articles 176ff of the PILA apply. The enforcement proceedings also differ, depending on whether the award contains money claims or non-money claims. 4.3 Categories of Arbitral Awards Not Enforced Declaratory arbitral awards, whether domestic or for - eign, are not enforceable. Interim measures issued by foreign arbitral tribunals are not directly enforceable (Article 183 (2), PILA). 4.4 Process of Enforcing Arbitral Awards Enforcement of Domestic Arbitral Awards Once notice of a domestic award has been given to the parties, it has the effect of a final and binding judgment (Article 387, CPC). The enforcement pro - cedure for domestic arbitral awards is the same as that for domestic judgments (see 2.2 Enforcement of Domestic Judgments ), except where both parties are domiciled abroad and have excluded the possibility to challenge the award before the Federal Court, in which case the New York Convention applies.
• if it is irreconcilable with a judgment given in a dispute between the same parties in the state in which recognition is sought; or • if it is irreconcilable with an earlier judgment given in another state bound by the LC or in a third state involving the same cause of action and between the same parties, provided that the earlier judg - ment fulfils the conditions necessary for its recog - nition in the state addressed. Article 35 of the LC provides that a judgment will not be recognised if it conflicts with Section 3, 4 or 6 of Title II of the LC, or under Article 64 (3), 67 (4) or 68 of the LC. The Swiss court may in no circumstance review the substance of the foreign judgment (Article 36, LC). Challenging the Enforcement of a Judgment Under the PILA The main defences against the enforcement of a judg - ment under the PILA are as follows: • the foreign decision is not final and binding – ie, an ordinary appeal can still be brought against it (Article 25 (b), PILA); • the enforcement of the foreign decision would breach substantive Swiss public policy (Article 27 (1), PILA); • the defendant did not receive proper notice under the law of its domicile or that of its habitual resi - dence, unless the defendant proceeded on the merits without reservation (Article 27 (2)(a), PILA); • the foreign decision was issued in breach of funda - mental principles of Swiss procedural law, includ - ing the fact that the party concerned was denied the right to be heard (Article 27 (2)(b), PILA); and • a dispute between the same parties and with respect to the same subject matter has been initiated in Switzerland first or has already been decided there, or that such dispute has previously been decided in a third state, provided the latter decision fulfils the requirements for recognition in Switzerland (Article 27 (2)(c), PILA).
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