Author: Claude Reymond**
Published: June 1990
| Jurisdiction: Switzerland |
Topics: Arbitrators and Arbitral Tribunals Applicable Law Arbitral Awards Practice and Procedure |
Description: The readers of this journal are no doubt aware that in 1987 Switzerland enacted a Private International Law Act (the “Act”), which brought a long-awaited change to its arbitration law. The Act, a federal statute, came into force on January 1, 1989. International arbitration is henceforth exclusively governed by the provisions of the Act, whereas domestic arbitration remains governed by cantonal law in the form of a uniform arbitration act, the Swiss Intercantonal Convention on Arbitration (Concordat), adopted by the Conference of Cantonal Directors of Justice in 1969 and enacted into law in all member States of the Confederation of Switzerland, except Lucerne.
An adequate presentation of the new provisions, as contained in the twelfth chapter of the new Act, would require much more space than that allocated to this note. Moreover, a number of learned articles and two new books are devoted to the subject.
It suffices to say here that the provisions of the Act stem from three basic principles. First, the parties’ agreement is of paramount importance, particularly with respect to the arbitration site, the system for designating and replacing arbitrators, the procedure to be followed in the arbitration, the choice of governing law, and the choice between full waiver of the right to appeal and limiting an action to set aside the award to one or several of the grounds contained in the Act.
The second principle is to give the arbitrator (or the panel of arbitrators), in the absence of a contrary provision in the parties* agreement, the widest margin of freedom in the organization and conduct of the arbitral proceedings. As a result, parties and arbitrators may conduct international arbitrations in Switzerland in the manner practiced in common law jurisdictions, for instance, they are not compelled to follow a civil law pattern of procedure.
*Comments
**Avocat en Barreau (Lausanne). Professor Emeritus, Lausanne University. Fellow, Chartered Institute of Arbitrator. The author, who alone is responsible for the views expressed in this note, wishes to thank Douglas Reichert, Member of the California Bar, of the firm Party, Junet, Simon & Le Fort, Geneva. This comment is current as of February 14, 1990.