Fiche de révision : Les Fondements Juridiques de l'Arbitrage International

📋 Plan du Cours

1. Nature and binding effect of arbitral tribunals
2. Delimitations and relation to Alternative Dispute Resolution (ADR)
3. Sources of law in arbitration including the 1958 New York Convention
4. Arbitrability and special dispute categories
5. Determination and consequences of the seat of arbitration
6. Appointment, composition, and organization of the arbitral tribunal
7. Independence, challenge, and removal of arbitrators
8. Jurisdiction and competence of the arbitral tribunal and state court intervention
9. Arbitral procedure: organization, course, and procedural orders
10. Taking of evidence and hearings in arbitration
11. Arbitral award: notification, content, and effects
12. Recognition and enforcement of foreign arbitral awards under the New York Convention

📖 1. Nature and binding effect of arbitral tribunals

🔑 Notions clés & Définitions

• Arbitral tribunal : Therefore decide whether the main contract is actually void or not.
• Arbitration agreement : The arbitration agreement is an agreement.

📝 Points essentiels

• An arbitration agreement can be concluded unilaterally under Art. 178 para. 4 PILA.
• Arbitration clauses in articles of association bind both founding and subsequent members.
• A party may be bound by an arbitration agreement based on the principle of good faith (Art. 2 CC).
• 1 PILA) is applied to the main contract, while the validity of the arbitration clause in the main contract is assessed accord- ing to Swiss law (Art.
• This waiver is based on an agreement, the arbitra- tion agreement.

💡 À retenir

Understanding the fundamental contractual nature and binding force of arbitration agreements is essential to grasp how arbitral tribunals derive their authority.

📖 2. Delimitations and relation to Alternative Dispute Resolution (ADR)

🔑 Notions clés & Définitions

• Language of the proceedings : To avoid unpleasant surprises and unexpected translation costs, it is advisable to determine the language of the proceedings in the arbitration agreement.
• Alternative Dispute Resolution : Methods of resolving disputes outside of formal court or arbitration proceedings, such as mediation and conciliation, which generally do not produce binding decisions enforceable like arbitration awards.

📝 Points essentiels

• ADR methods like mediation and conciliation differ fundamentally from arbitration in binding effect and procedure.
• Arbitration is a formal dispute resolution mechanism with binding awards, unlike most ADR methods.
• The scope of arbitration excludes disputes resolved solely by ADR processes without an arbitration agreement.
• Principle 1. The arbitration agreement shall lapse upon its termination. Its effects shall lapse ex nunc. 2. Termination must be distinguished from an ineffective or invalid agreement. Even if the legal consequences are comparable, the invalid arbitration agreement has no effect from the outset (ex tunc). 3. The termination of the arbitration agreement has the following consequences: a. The state court rather than the arbitration court shall have jurisdiction over disputes. b. If the arbitration proceedings are pending, the expiry of the arbitration agreement shall render the arbitral tribunal ex nunc without jurisdiction. The arbitral tribunal can no longer make an award, except for the costs incurred up to the expiry of the arbitration agreement. 28 B. Reasons for termination The most important reasons for cancellation are 1. Achievement of purpose: Ideally, the arbitration agreement is terminated when the dispute is settled, typically by arbitration award. However, as long as disputes can still arise from the arbi- tration agreement in question, the arbitration agreement remains effective even after an arbitral award, i.e. for further disputes. 2. Revocation by mutual agreement: The parties are free to terminate the arbitration agreement by mutual agreement. This can also happen implicitly, for example by the respondent that is accept- ing by appearance the state court’s
• Definition 1. The (objective) arbitrability relates to whether the subject matter of the dispute may be validly submitted to arbitration or whether it belongs exclusively to the domain of the state courts. Con- versely, the legal system thus defines which disputes are excluded from arbitration. This also means that not all claims under private law can be resolved by arbitration. 2 Pursuant to Art. 177 para. 1 PILA, any claim involving an economic interest (e.g. that have a pecuniary nature) may be submitted to arbitration. This means any claim that has a monetary effect on the assets or liabilities of the entitled party, i.e. represents an interest that can be deter- mined in monetary terms for at least one party. It does not necessarily have to be a monetary payment; legal claims that otherwise affect the assets are also of a pecuniary nature and therefore arbitrable. Art. 177 para. 1 PILA is a substantive rule of Swiss private international law, not a conflict of laws rule. Whether a “claim of economic interest” exists is therefore not determined by the law appli- cable to the arbitration agreement (Art. 178 para. 2 PILA) or the law applicable to the case (lex causae), but solely by Art. 177 para. 1 PILA. 3. In domestic arbitration, arbitrability is defined differently. It can even be said that in Swiss arbitration law, the most important difference between international and

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Distinguer l'arbitrage des autres méthodes ADR clarifie son rôle unique en tant que processus de résolution de litiges contraignant.

📖 3. Sources of law in arbitration including the 1958 New York Convention

🔑 Notions clés & Définitions

• International arbitration law : International arbitration law is a composite legal framework consisting of treaties, national laws, and institutional rules that regulate arbitration across borders.

📝 Points essentiels

• The 1958 New York Convention governs recognition and enforcement of foreign arbitral awards in signatory states.
• Lex arbitri refers to the law of the seat of arbitration governing procedural aspects.
• Part 3 of the CPC is applicable, but rather the lex arbitri at the place of arbitration. 3. The third important source of law is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (NYÜ). The Convention has been ratified by almost all states in the world and therefore represents an almost universal standardisation of law in its area of application. 4. No legal sources of arbitration are the arbitration rules. These are pre-formulated procedural rules that are adopted by the parties for their arbitration proceedings. They are regularly issued by arbitration institutions and are designed for proceedings before such institutions. According to their legal nature, however, they are merely a special form of procedural agreement between the parties (see Art. 182 para. 1 PILA and Art. 373 para. 1 lit. b CPC), comparable to general terms and conditions. III. State court assistance (“Juge d’appui”) 1. Even if the parties exclude state jurisdiction in the arbitration agreement, there may be situations in the arbitration proceedings where the assistance of the state court is required. The lex arbitri must therefore provide for mechanisms that enable and ensure the conduct of the arbitration proceedings. The legal system does this by providing an auxiliary procedure before the state court, the juge d’appui. Examples The defendant would have to
• CO) and the applicable lex arbitri. The Federal Supreme Court therefore considers the arbitrator relationship to be a contract of procedural law (“Vertrag des Prozessrechts”, “contrat procédural”) to which private law applies by analogy. 2. The arbitral contract is concluded with the declaration of acceptance of the office (Art. 364 para. 1 CO). 3. The parties to the arbitral contract are the members of the arbitral tribunal individually and the parties to the arbitration as joint debtors and joint creditors (“Solidarschuldner und Solidar- gläubiger”, “codébiteurs et créanciers solidaires”). In institutional arbitration, there is a contractual triangular relationship between the arbitration par- ties and the institution, between the institution and the arbitrators and between the arbitrators and the arbitration parties. 4. The arbitration agreement and the arbitral contract are independent of each other. In particular, an invalid arbitral contract does not invalidate the arbitration agreement. The arbitration agreement also does not cover disputes arising from the arbitral contract. If the arbitral contract does not contain its own arbitration clause, disputes arising from the arbitral contract are subject to the jurisdiction of state courts. 2. Rights and duties of the arbitrator 1. Arbitrators are obliged to conduct their mandate faithfully and diligently (Art. 398 para. 2

💡 À retenir

Recognizing the layered sources of law, especially the 1958 New York Convention, is key to understanding the legal framework governing arbitration.

📖 4. Arbitrability and special dispute categories

🔑 Notions clés & Définitions

• Arbitrability : A legal concept determining whether the subject matter of a dispute may be validly submitted to arbitration or must be resolved exclusively by state courts.

📝 Points essentiels

• Objective arbitrability is a substantive condition for the validity of an arbitration agreement (Art. 177 para. 1 PILA).
• Certain disputes are excluded from arbitration due to public policy or statutory prohibitions.
• The scope of arbitrability varies by jurisdiction and dispute type.
• The fact that an agreement on the place of jurisdiction for such claims is arbitration proceedings, must be distinguished from objective arbitrability.
• An ex officio-examination is also discussed as to the (objective) arbitrability.

💡 À retenir

Understanding which disputes can be validly submitted to arbitration is essential for determining the applicability and validity of arbitration agreements.

📖 5. Determination and consequences of the seat of arbitration

🔑 Notions clés & Définitions

• Seat of arbitration : The legal place of arbitration proceedings that determines the applicable procedural law (lex arbitri) and the jurisdiction of local courts for state assistance.
• Determination of the seat : The process by which the place of arbitration is fixed, either by agreement of the parties or, failing that, by the arbitral tribunal or institution.

📝 Points essentiels

• The seat affects the extent of state court intervention and the applicable procedural rules.
• Interim awards related to appointment, constitution, or jurisdiction must be contested immediately after issuance to avoid forfeiture.
• Part 3 of the CPC is applicable, but rather the lex arbitri at the place of arbitration. 3. The third important source of law is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (NYÜ). The Convention has been ratified by almost all states in the world and therefore represents an almost universal standardisation of law in its area of application. 4. No legal sources of arbitration are the arbitration rules. These are pre-formulated procedural rules that are adopted by the parties for their arbitration proceedings. They are regularly issued by arbitration institutions and are designed for proceedings before such institutions. According to their legal nature, however, they are merely a special form of procedural agreement between the parties (see Art. 182 para. 1 PILA and Art. 373 para. 1 lit. b CPC), comparable to general terms and conditions. III. State court assistance (“Juge d’appui”) 1. Even if the parties exclude state jurisdiction in the arbitration agreement, there may be situations in the arbitration proceedings where the assistance of the state court is required. The lex arbitri must therefore provide for mechanisms that enable and ensure the conduct of the arbitration proceedings. The legal system does this by providing an auxiliary procedure before the state court, the juge d’appui. Examples The defendant would have to
• 61 CPC is applicable if, in a purely domestic case before a Swiss state court, it is argued that the seat of arbitration is in Switzerland.

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The choice of seat shapes the arbitration’s procedural landscape and the role of national courts.

📖 6. Appointment, composition, and organization of the arbitral tribunal

🔑 Notions clés & Définitions

• 1 PILA : Each party shall appoint the same number of members of the arbitral tribunal and they shall unanimously elect their chairperson (see also Art.
• Appointment of arbitrators : The parties can appoint their own arbitrators.

📝 Points essentiels

• Both parties must have equal participation in appointing arbitrators to ensure parity.
• The arbitral tribunal’s composition (number and qualifications) is often defined by the arbitration agreement or institutional rules.
• Private bodies designated by parties for appointment decisions are not subject to appeal.

💡 À retenir

Une formation et une organisation correctes du tribunal garantissent la légitimité et l'équité de la procédure arbitrale.

📖 7. Independence, challenge, and removal of arbitrators

🔑 Notions clés & Définitions

• Challenge of arbitrators : The procedural act of contesting an arbitrator's appointment based on objective grounds related to their qualifications, independence, or impartiality, in accordance with legal and procedural rules.
• Disclosure obligations : The duty of arbitrators to reveal any circumstances that may raise doubts about their independence or impartiality as soon as the arbitration mandate is offered and throughout the proceedings.
• Independence and impartiality : The fundamental qualities required of arbitrators to ensure that arbitral awards have the same validity as state court judgments, meaning arbitrators must be free from bias and undue influence.
• Grounds for challenge : The legally defined reasons for contesting an arbitrator, including failure to meet agreed qualifications, lack of independence or impartiality, or circumstances that may raise doubts about these qualities, as specified in Art. 180 para. 1 PILA.
• Ground for challenge : It is the most im- portant ground for challenge because: a.

📝 Points essentiels

• Arbitrators must disclose any circumstances that may raise doubts about their independence or impartiality (Art. 180 para. 1 PILA).
• Challenges to arbitrators must be based on objective grounds and follow procedural rules.
• Breaches of duty by arbitrators can lead to loss of fees and liability for damages, but mere incorrect decisions do not suffice.
• Arbitrators have a duty to disclose circumstances that could give rise to legitimate doubt as to their independence or impartiality.

💡 À retenir

Arbitrators must disclose any circumstances that may raise doubts about their independence or impartiality (Art. 180 para. 1 PILA).

📖 8. Jurisdiction and competence of the arbitral tribunal and state court intervention

🔑 Notions clés & Définitions

• Jurisdiction of the arbitral tribunal : The authority of the arbitral tribunal to decide on the existence and validity of the arbitration agreement and to rule on its own competence, including the power to accept or decline jurisdiction based on a summary examination.

📝 Points essentiels

• State courts may intervene only in limited circumstances, such as appointment refusal or setting aside awards.
• Interim awards on jurisdiction or appointment must be contested immediately or grounds are forfeited.

💡 À retenir

Balancing tribunal autonomy with limited court oversight preserves arbitration’s efficiency and finality.

📖 9. Arbitral procedure: organization, course, and procedural orders

🔑 Notions clés & Définitions

• Procedural orders : Decisions issued by the arbitral tribunal to organize and regulate the arbitration procedure.
• Incidental decisions : According to the opinion expressed here, incidental decisions are pro- cedural rulings of particular significance.
• Arbitral procedure : The proceedings before the arbitral tribunal itself, from its constitution to the rendering of the arbitral award, including pleadings, evidence, hearings, and issuance of the award.

📝 Points essentiels

• The arbitral tribunal organizes the procedure and may issue procedural orders to regulate the process.
• Parties must comply with procedural orders to ensure orderly proceedings.
• The course of arbitration includes pleadings, evidence, hearings, and award issuance.
• Art. 182 para. 1 PILA. 2. The Swiss lex arbitri does not provide for any subsidiary (standard) rules in the event that the arbitral tribunal does not regulate the proceedings. It follows that Art. 182 para. 1 PILA is man- datory in that sense that the arbitral tribunal is obliged to answer any procedural questions that may arise. 3. The arbitral tribunal may determine the procedural issues: a. integral or selective, namely: 61 – integral in the sense that it defines the arbitration procedure comprehensively (from A to Z), or – the procedural questions that have just arisen can also only be answered selectively; If the parties have not determined the procedure, the arbitral tribunal will typically choose a hybrid form: At the beginning of the proceedings, it will determine the main procedural rules (e.g. number of exchanges of written submissions, conduct of hearings, time limits and form of submissions, etc.), but without regulating the procedure down to the last detail. If specific questions then arise during the proceedings (e.g. what to do if a witness does not appear or if a party submits evidence or expands its legal claims after the exchange of written submissions has been concluded, etc.), the arbitral tribunal will answer these questions on a case-by-case basis. b. directly or indirectly, namely: – directly in the sense that it defines the rules of procedure itself, or
• Submissions 1. In contrast to state proceedings, arbitration proceedings do not begin with the statement of claim, but with an act of initiation with regard to the appointment of the arbitral tribunal. The exchange of written submissions is then regularly integrated into the pending arbitration proceedings. 2. The order in which and the number of written submissions to be exchanged is often deter- mined at the organization meeting or in the terms of reference. The dates for the submissions are set in the procedural timetable drawn up at the same time. A double exchange of written submis- sions (with statement of reply and statement of rejoinder) regularly takes place. It is not uncommon for the parties to submit final written submissions (so-called post hearing briefs) after the hearings, especially if no final oral submissions are made by the parties. 3. It is not uncommon to provide for a document production procedure between the first and sec- ond exchange of written submissions. After exchanging their first submissions, the parties request the production of documents that are in the possession of the other party. The arbitral tribunal decides on the requests so that these documents can be introduced into the proceedings with the second written submissions. E. Taking of evidence 1. The Swiss lex arbitri contains few provisions on the taking of evidence: a. The lex arbitri

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Effective procedural management by the arbitral tribunal ensures a fair and efficient arbitration process.

📖 10. Taking of evidence and hearings in arbitration

🔑 Notions clés & Définitions

• Taking of evidence : Procédure par laquelle le tribunal arbitral recueille des preuves conformément aux règles procédurales convenues par les parties ou à la lex arbitri applicable.
• Evidence in International Arbitration : Ensemble des éléments probatoires présentés dans le cadre d'un arbitrage international, soumis à l'appréciation du tribunal arbitral selon les règles procédurales convenues ou la lex arbitri.

📝 Points essentiels

• Evidence is taken according to the procedural rules agreed by parties or lex arbitri.
• Hearings provide parties the opportunity to present evidence and arguments orally.
• The tribunal has discretion over the admissibility and evaluation of evidence.
• Hearing 1. The hearing is held above all for the taking of evidence (hearing of witnesses, questioning of experts). Counsel for the parties also use the opportunity for oral presentations. Hearings are also held in almost all arbitration proceedings. However, the parties are free to dispense with them or even to conduct a “documents only” procedure in which decisions are only made on the basis of documents. 68 2. From a legal perspective, it should be noted that the right to be heard gives the parties the right to participate in the hearing. They must therefore be informed of the time and place of the hearing sufficiently in advance. The right to be heard also gives the parties the right to ask questions of witnesses and experts. However, according to Swiss procedural law, the right to be heard does not, in principle, give rise to a right to an oral hearing. 3. The hearings usually take place over several days, often in hotel conference rooms and, favoured by the Covid pandemic, via video conferencing. The statements are recorded in the minutes ver- batim by court reporters. Hearings usually proceed as follows: a. Short opening statements by the party lawyers; b. Examination of witnesses and experts in the predetermined order; c. Oral closing statements, which are made immediately after the taking of evidence, or written submissions (post hearing briefs), which are often
• Art. 182 para. 1 PILA. 2. The Swiss lex arbitri does not provide for any subsidiary (standard) rules in the event that the arbitral tribunal does not regulate the proceedings. It follows that Art. 182 para. 1 PILA is man- datory in that sense that the arbitral tribunal is obliged to answer any procedural questions that may arise. 3. The arbitral tribunal may determine the procedural issues: a. integral or selective, namely: 61 – integral in the sense that it defines the arbitration procedure comprehensively (from A to Z), or – the procedural questions that have just arisen can also only be answered selectively; If the parties have not determined the procedure, the arbitral tribunal will typically choose a hybrid form: At the beginning of the proceedings, it will determine the main procedural rules (e.g. number of exchanges of written submissions, conduct of hearings, time limits and form of submissions, etc.), but without regulating the procedure down to the last detail. If specific questions then arise during the proceedings (e.g. what to do if a witness does not appear or if a party submits evidence or expands its legal claims after the exchange of written submissions has been concluded, etc.), the arbitral tribunal will answer these questions on a case-by-case basis. b. directly or indirectly, namely: – directly in the sense that it defines the rules of procedure itself, or

💡 À retenir

La prise de preuves et la tenue d'audiences, encadrées par les règles procédurales applicables, sont essentielles pour garantir une procédure arbitrale équitable.

📖 11. Arbitral award: notification, content, and effects

🔑 Notions clés & Définitions

• Arbitral award : La décision finale rendue par le tribunal arbitral qui tranche le litige soumis à arbitrage, incluant les décisions sur les coûts, et qui est contraignante, exécutoire et susceptible de recours limités.

📝 Points essentiels

• The award must contain reasons unless parties have agreed otherwise.
• The award is binding and final subject to limited grounds for challenge.
• Costs decisions are part of the award and enforceable accordingly.
• 1). The legal situation is different in domestic arbitration. The decision on costs is part of the arbitration award (Art. 384 lit. f CPC), can be contested in appeal proceedings (Art. 393 lit. f CPC), becomes final and can be enforced accordingly. 3. Breaches of duty by the arbitrators may result in the loss of their fee entitlement and in an obli- gation to pay compensation. However, it is disputed which breaches of duty are capable of triggering these legal consequences. An incorrect decision in terms of content alone or the fact that the decision was overturned by the appeal court does not lead to the corresponding consequences for damages. Additional circumstances would therefore need to be added. However, the literature is divided as to which aggravating circumstances must be added to trigger the liability of the arbitrators. 3. Termination A. In general The arbitrator’s mandate ends: 1. Ideally upon conclusion of the arbitration proceedings. However, the arbitration agreement may still be revived if the arbitrators have to deal with the matter again, for example as a result of a request for correction, explanation or amendment of the award (Art. 388 CPC) or because the arbitral award is set aside as a result of an appeal and referred back to the arbitral tribunal for a new decision. 50 2. When an arbitrator ceases to hold office, so that he must be replaced (Art. 179
• In both does not wish to see the arbitral decision set aside as a result of an appeal against its award, it must also observe these procedural rules.

💡 À retenir

L'arbitral award constitue l'instrument définitif de résolution du litige en arbitrage, dont la forme, la notification, le contenu et les effets sont strictement encadrés par des règles procédurales et légales.

📖 12. Recognition and enforcement of foreign arbitral awards under the New York Convention

🔑 Notions clés & Définitions

• Confidentiality : The confidentiality of the proceedings is repeatedly mentioned as an ad- vantage of arbitration.
• Enforcement of Foreign Arbitral Awards : The process by which an arbitral award made in one country is recognized and given effect in another country, subject to conditions such as compliance with the public policy of the enforcing state.

📝 Points essentiels

• Recognition and enforcement of foreign awards are governed by the 1958 New York Convention.
• Awards may be refused enforcement only on limited grounds, including violation of public policy.
• Public policy is narrowly construed as fundamental legal principles widely recognized in Switzerland.
• The NYC only applies to foreign arbitral awards.
• 1): “The substantive assessment of a disputed claim is only contrary to public policy if it disregards fun- damental legal principles and is therefore completely incompatible with the essential, widely recog- nized system of values which, according to the prevailing view in Switzerland, should form the basis of every legal system.” Put simply, public policy is therefore about (i) a widely recognized (albeit not universal) set of values, which (ii) in the Swiss view should form the basis of every legal system. According to this formula, it is therefore not enough for the rule of law violated to be universally rec- ognized; nor is it enough for a rule of law to be of such fundamental importance from a Swiss perspec- tive that it should apply in every legal system. Rather, it is the combination of the two elements or the common denominator that is decisive: the legal rule must be fundamental from a Swiss perspective in the sense described and must also correspond to the conviction of most states. However, the violation of public policy alone is not sufficient to set aside the award; the decision must also violate public policy in its result. 3. There is a distinction between substantive and procedural public policy: a. The substantive public policy covers fundamental (substantive) legal principles. 90 The Federal Supreme Court cites the following examples (i.e. not exhaustive): contractual loyalty (pacta sunt servanda), the prohibition of abuse of rights, the principle of good faith, the prohibition of expropriation without compensation, the prohibition of discrimination and the protection of persons incapable of acting, prohibition of the promise of bribes, the prohibition of forced labour and a violation of Art. 27 CC (on the latter, see

💡 À retenir

The New York Convention establishes an almost universal legal framework that facilitates the recognition and enforcement of foreign arbitral awards, allowing refusal only on narrowly defined grounds such as violation of Swiss public policy.

📊 Tableaux de Synthèse

Legal Sources of Arbitration Law

Role of State Courts in Arbitration

⚠️ Pièges & Confusions Fréquentes

1. Confusing arbitration with ADR methods like mediation and conciliation, which are non-binding.
2. Misunderstanding the binding nature of arbitration agreements and their unilateral conclusion.
3. Overlooking the importance of the seat of arbitration in procedural law and court jurisdiction.
4. Ignoring the limited grounds for court intervention and the autonomy of arbitral tribunals.
5. Misinterpreting the scope of the 1958 New York Convention and its enforcement standards.
6. Confusing the procedural rules (arbitration rules) with substantive law.
7. Underestimating the importance of independence and impartiality in arbitrator challenges.

✅ Checklist Examen

1. Verify the validity and scope of the arbitration agreement.
2. Determine the seat of arbitration and applicable lex arbitri.
3. Ensure proper appointment and organization of the arbitral tribunal.
4. Check arbitrator independence and challenge grounds.
5. Understand the arbitration procedure and procedural orders.
6. Assess the enforceability of arbitral awards under the New York Convention.
7. Distinguish between arbitration and other ADR methods.
8. Identify the legal sources applicable to the arbitration.
9. Review the role and limits of state court intervention.
10. Ensure procedural compliance and proper conduct of hearings.
11. Evaluate grounds for setting aside or refusing recognition of awards.