By Matthias Scherer and Catherine A. Kunz
In a recent decision dated 21 December 2012 (5A_355/2012), the Swiss Federal Supreme Court clarified the conditions for obtaining a freezing order for the purpose of enforcing an arbitral award or a foreign court decision. The decision, which will be published in the forthcoming ASA Bulletin 2.2013 with an analysis by Blaise Stucki and Louis Burrus, confirmed the decision of a lower court that a freezing order could be issued based on a foreign arbitral award without any prior decision on its recognition and enforcement (exequatur).
The case before the Supreme Court concerned an award rendered by an arbitral tribunal seated in London in relation to [...]
In a recently published decision dated 6 August 2012 (4A_119/2012), the Swiss Federal Supreme Court confirmed its own jurisprudence according to which state courts facing a jurisdictional defense based on an alleged arbitration agreement must not assess in full the validity of the arbitration agreement. In such cases, the state court must limit itself to a summary examination of whether or not a valid arbitration agreement exists.
On 27 September 2012, the Swiss Parliament adopted a motion that had been introduced earlier this year tasking the Government to prepare a report on the Swiss Arbitration Law (chapter 12 of the Federal Act on Private International Law (PILA)). The objective of the report is to further enhance the attractiveness of Switzerland as a place of arbitration.
The motion aims specifically at incorporating established case law since the coming into force of the Swiss Arbitration Law some 20 years ago. The purpose of the report is not to revise the existing law entirely. Rather, the goal of the review process is to gather feedback from relevant quarters and arbitration users with a view to furth [...]
and Sam Moss, Lalive
In its recent decision dated 2 July 2012 in case 5A_754/2011, the Swiss Supreme Court ruled for the first time on the issue of whether, pursuant to Art. IV(2) of the New York Convention (“NYC”), a full translation of an award must be produced by parties seeking recognition and enforcement in every case, without exception, or whether courts can dispense with the requirement in certain circumstances.
In the case before the Supreme Court, the party seeking enforcement had filed a certified German translation of only the dispositive part of the English language award, along with a non-certified translation of the arbitral tribunal’s decision on costs. The cantonal c [...]
On 1 June 2012, the new revised version of the Swiss Rules of International Arbitration (“Swiss Rules”) will come into force. According to Article 1.3, the new Rules will apply to all Swiss Rules proceedings in which the Request for Arbitration is submitted after 1 June 2012, unless the Parties agree otherwise.
The Swiss Rules 2012 build on the initial version of the Swiss Rules, which were created in 2004 in order to harmonize the arbitration rules of six Swiss Chambers of Commerce (those of Basel, Berne, Geneva, Ticino (Lugano), Vaud (Lausanne), and Zurich, joined later by Neuchâtel). The 2004 Rules were based on the UNCITRAL Arbitration Rules, although they were adapted by the Ch [...]
By Matthias Scherer and Simone Nadelhofer, LALIVE, Geneva and Zurich
The Swiss Federal Supreme Court recently published a decision rendered last addressing the enforceability of an English Worldwide Freezing Order (“WFO”) in Switzerland. Of particular interest was the question whether a party can apply for a mere declaration of enforceability without actually seeking to enforce the WFO against specific assets (ATF 4A_366/2011, decision of 31 October 2011). The decision in German can be downloaded on http://jumpcgi.bger.ch/cgi-bin/JumpCGI?id=31.10.2011_4A_366/2011.
A WFO, a preliminary injunction preventing a defendant from disposing of assets pending the resolution of the underlying subs [...]