Review of Arbitration-Related Case Law

Case Law, Swiss Federal Supreme Court, Arbitration

Jonatan Baier published his Review of the Recent Case Law of the Swiss Federal Supreme Court in the framework of the conference New Developments in International Commercial Arbitration 2016.

The paper analyzes the case law of the Swiss Federal Supreme Court on international arbitration-related matters rendered between 25 August 2015 and 25 August 2016. A total of 30 decisions rendered in setting aside and enforcement proceedings are assessed and discussed in detail.

Notable developments during this period include: (i) the first fully-fledged decision on investment treaty arbitration (141 III 495); (ii) an indication by the Supreme Court that it may have departed from its long standing practice of taking a restrictive approach when determining whether or not the parties concluded an agreement to arbitrate (142 III 239, 4A_136/2015); (iii) the holding that it is possible, in exceptional circumstances, to conclude an arbitration agreement when exchanging contract drafts (142 III 239); (iv) the decision that, in case of noncompliance with a mandatory contractual pre-arbitral clause, an arbitral tribunal must stay the arbitration until the clause has been complied with (142 III 296); (v) the holding that parties may waive certain aspects of their right to be heard as long as they are aware of the consequences and as long as the very core of the right remains intact (4A_342/2015); and (vi) the confirmation by the Supreme Court that its scope of review with regard to the right to be heard is narrow (4A_202/2016).

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