Revised Swiss Rules and new Swiss Arbitration Platform
Articles
Legal
International Arbitration, Swiss Rules, Rules of Arbitration
Dr. Jonatan Baier
Legal Counsel
Overview
On 1 June 2021, a milestone for the Swiss (and international) arbitration community was achieved. On the one hand the Swiss Chambers’ Arbitration Institution (“SCAI”) became the Swiss Arbitration Centre, and on the other hand the revised Swiss Rules of International Arbitration (“2021 Swiss Rules”) entered into force.
Swiss Arbitration Centre (former SCAI)
As of 1 June 2021, SCAI is renamed to Swiss Arbitration Centre and transformed from a Swiss association into a Swiss stock corporation. As a platform of expertise, the Swiss Arbitration Centre is supported by the Swiss Arbitration Association (“ASA”) and the chambers of commerce of Basel, Bern, Central Switzerland, Geneva, Neuchâtel, Ticino and Zurich. The Swiss Arbitration Centre, the ASA, the Swiss Arbitration Academy and the Swiss Arbitration Hub are newly united under the Swiss Arbitration website (https://www.swissarbitration.org/).
Arbitration clauses which refer to SCAI will remain valid and binding and will be recognised and applied by the Swiss Arbitration Centre as the legal successor of SCAI. Nevertheless, we now advise to refer in any contract concluded from 1 June 2021 to the “Swiss Rules of International Arbitration of the Swiss Arbitration Centre“.
The 2021 Swiss Rules
The revised 2021 Swiss Rules generally apply to all arbitrations in which the Notice of Arbitration is filed on or after 1 June 2021. The key changes are the following:
Notice of Arbitration: Claimant will be able to submit the Notice of Arbitration electronically. No hard copies of the Notice of Arbitration will be required, unless the Secretariat requests otherwise or Claimant requests that the Secretariat notifies a hardcopy to the other party (Article 3(1)). This also applies to the Answer to the Notice of Arbitration (Article 4(1)).
Cross-claims, joinder, intervention: A party asserting a cross-claim, requesting a joinder or an intervention shall submit a notice of claim (Article 6(1)). After the constitution of the arbitral tribunal and after consulting with all parties, any cross-claim, request for joinder or request for intervention shall be decided by the arbitral tribunal (Article 6(3)). There is the possibility for a third person to participate in the proceedings in a capacity other than an additional party, allowing arbitral tribunals to decide on whether to permit such participation and on its modalities (Article 6(4)).
Consolidation: The possibility to submit a request to consolidate arbitration proceedings is now expressly provided for in the 2021 Swiss Rules (Article 7(1)). Unless all parties agree or the Court decides otherwise, the proceedings shall be consolidated into the arbitration commenced first (Article 7(3)).
Appointment of arbitrators: If the parties have not agreed upon a procedure for the constitution of the arbitral tribunal in multi-party proceedings, the revised 2021 Swiss Rules provide that the Court shall set a reasonable time limit for Claimant and Respondent (or the respective group of parties) to each designate an arbitrator (Article 11(4)). The presiding arbitrator shall then be designated in accordance with Article 11(2). This will allow for a swift appointment of the arbitral tribunal in multi-party proceedings.
Independence, impartiality and disclosures of arbitrators: Each arbitrator shall have the duty – before and after the appointment – to promptly disclose to the Secretariat and to the parties any circumstances likely to give rise to justifiable doubts as to their impartiality or independence (Article 12).
Appointment of new representative: Proof of authority of a representative may be requested at any time. Furthermore, the arbitral tribunal may oppose the appointment of a new representative where this would risk jeopardising the impartiality or independence of the arbitral tribunal (Article 16(4)).
Organisation and conduct of the proceedings: At the outset, the arbitral tribunal and the parties shall discuss the organisation of the arbitration proceedings as well as issues of data protection and cybersecurity (Article 19(2)). Moreover, the parties may agree to resolve the dispute by mediation at any time during the arbitration proceedings. To facilitate this process and unless the parties agree otherwise, the arbitration proceedings will be stayed during that period (Article 19(6)).
Hearings: Any hearings may be held remotely by videoconference or other appropriate means, as decided by the arbitral tribunal after consulting with the parties (Article 27(2)).
Award: Originals of the award signed by the arbitrators shall be notified by the Secretariat to the parties, provided that the fees and (travel) expenses of the arbitral tribunal, the costs of expert advice and of other assistance, the registration fee and the administrative costs have been paid in full (Article 34(5)).
Costs: The revised Schedule of Costs in Appendix B provides for slightly higher administrative costs only charged for amounts in dispute above CHF 300,000. The administrative costs are capped at CHF 75,000 for disputes above CHF 250 million. On the other hand there are slightly reduced fees for arbitrators. Cost deposits will be held by the Secretariat rather than by the arbitral tribunal (Appendix B, Sect. 4.1).
Conclusion
The creation of the Swiss Arbitration Centre is a development that must be welcomed. The cooperation between SCAI and ASA under the roof of the Swiss Arbitration Centre offers very promising perspectives for the further development of Switzerland as a global arbitration platform.
While the 2021 Swiss Rules do not make any sweeping changes, they do, however, constitute a welcome refinement of the existing provisions. They incorporate a number of topical and important issues which are relevant for our new operating environment, such as the reference to cybersecurity and data protection issues and the new provision on remote hearings. In particular, the revised 2021 Swiss Rules confirm the prevailing practice of arbitral tribunals since the global COVID-19 pandemic and are thus a welcome development.
