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Arbitral proceedings

Starting an arbitration proceeding
What is needed to commence arbitration?

Under Swiss arbitration law, arbitration proceedings are considered to be pending as soon as one of the parties seizes the arbitrator(s) designated in the arbitration agreement with a claim. If no arbitrators are designated in the arbitration agreement, the proceedings are considered to be pending from the moment that one of the parties initiates the procedure for the appointment of the tribunal (Article 181 of the Federal Statute on Private International Law).

According to Article 3 of the 2012 Swiss Rules of International Arbitration, arbitration proceedings "shall be deemed to commence on the date on which the Notice of Arbitration is received by the Secretariat".

Limitation periods
Are there any limitation periods for the commencement of arbitration?

Chapter 12 of the Federal Statute on Private International specifies no limitation periods for the commencement of arbitration proceedings.

Procedural rules
Are there any procedural rules that arbitrators must follow?

According to Article 182(1) of the Federal Statute on Private International Law, the parties may, directly or by reference to rules of arbitration, determine the arbitration procedure; they may also submit the arbitration procedure to a procedural law of their choice. Article 182(2) of the Federal Statute on Private International Law states that if the parties have not determined the procedure, the tribunal shall determine it to the extent necessary, either directly or by reference to a statute or to rules of arbitration.

Regardless of the procedure chosen, the tribunal must guarantee equal treatment of the parties and the right of the parties to be heard in adversarial proceedings (Article 182(3) of the Federal Statute on Private International Law).

Dissenting arbitrators
Are dissenting opinions permitted under the law of your jurisdiction?

Chapter 12 of the Federal Statute on Private International Law does not address whether dissenting opinions are permitted. However, according to the Swiss Federal Supreme Court, a dissenting opinion may be expressed if the parties agreed to allow dissenting opinions or the majority of the tribunal decides to allow a dissenting opinion. Dissenting opinions do not form part of the award itself.

Judicial assistance
Can local courts intervene in proceedings?

Under certain circumstances, the Swiss courts may intervene in proceedings on the request of a party or the tribunal. For example, if a party does not voluntarily comply with provisional or conservatory measures ordered by the tribunal, the tribunal may request the assistance of the court (Article 183(2) of the Federal Statute on Private International Law). The tribunal or a party with the consent of the tribunal may request the assistance of the court of the place where the tribunal has its seat if this is necessary for the taking of evidence (Article 184(2) of the Federal Statute on Private International Law). In addition, a party may seize the Swiss Federal Supreme Court with an action for annulment of an arbitral award (Article 190 of the Federal Statute on Private International Law).

Can the local courts assist in choosing arbitrators?

The parties may seek help from the court of the place where the tribunal has its seat if this is necessary for the constitution of the tribunal. A party may, in particular, seize the court for the appointment, removal or replacement of arbitrators (Article 179(2) of the Federal Statute on Private International Law).

What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can they compel parties to arbitrate? Can they issue subpoenas to third parties?

Local courts cannot compel parties to arbitrate or issue subpoenas to third parties.

Third parties
In what instances can third parties be bound by an arbitration agreement or award?

In general, an arbitration agreement is binding only on the parties to the original agreement. Deviating from that general rule, a third (non-signatory) party may nevertheless become bound by the arbitration agreement based on several legal extension theories under Swiss law, such as the principle of confidence (Vertrauensprinzip), agency law or the piercing of the corporate veil. In particular, the extension of arbitration agreements to non-signatories may be justified under Swiss law where the third party explicitly or implicitly expressed its intention to be bound by the arbitration agreement (eg, by interfering in the performance of the relevant contract).

Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?

Unless the parties have agreed otherwise, the seat will be determined by the arbitral institution designated by them or, in the absence of such designation, by the arbitrators (Article 176(3) of the Federal Statute on Private International Law). The language will be chosen by the tribunal if the parties failed to make a choice in this regard (Article 182(2) of the Federal Statute on Private International Law).

Gathering evidence
How is evidence obtained by the tribunal?

Pursuant to Article 184(1) of the Federal Statute on Private International Law, the tribunal shall conduct the taking of evidence (ie, the parties and the arbitrators cannot delegate the taking of evidence to a third party, such as a state authority).

The procedure to be followed for taking evidence is a matter to be determined by the parties or, in the absence of any agreement, by the tribunal (Article 182 of the Federal Statute on Private International Law). Under Chapter 12 of the Federal Statute on Private International Law, a tribunal is not obliged to follow the rules of state courts regarding the taking of evidence.

A tribunal acting under Chapter 12 of the Federal Statute on Private International Law has no coercive powers. Thus, Article 182(2) of the Federal Statute on Private International Law provides that "[i]f the assistance of state judiciary authorities is necessary for the taking of evidence, the arbitral tribunal or a party with the consent of the arbitral tribunal may request the assistance of the state court judge at the seat of the arbitral tribunal; the judge shall apply his own law".

What kinds of evidence are acceptable?

Chapter 12 of the Federal Statute on Private International Law contains no provisions on the kinds of evidence that are acceptable. However, a tribunal acting under Chapter 12 of the Federal Statute on Private International Law will usually stick to the commonly known evidentiary means, such as documents, fact and expert witnesses, and site or subject-matter inspections.

Confidentiality
Is confidentiality ensured?

Chapter 12 of the Federal Statute on Private International Law contains no rules on confidentiality. By contrast, Article 44(1) of the 2012 Swiss Rules of International Arbitration provides that "[u]nless the parties expressly agree in writing to the contrary, the parties undertake to keep confidential all awards and orders as well as all materials submitted by another party in the framework of the arbitral proceedings not already in the public domain, except and to the extent that a disclosure may be required of a party by a legal duty, to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a judicial authority". This undertaking also applies, among other things, to the arbitrators, the tribunal-appointed experts and the secretary of the tribunal (Article 44(1) of the 2012 Swiss Rules of International Arbitration). According to Article 44(2) of the 2012 Swiss Rules of International Arbitration, the deliberations of the tribunal are confidential.

Can information in arbitral proceedings be disclosed in subsequent proceedings?

Article 44(1) of the 2012 Swiss Rules of International Arbitration provides that "[u]nless the parties expressly agree in writing to the contrary, the parties undertake to keep confidential all awards and orders as well as all materials submitted by another party in the framework of the arbitral proceedings not already in the public domain, except and to the extent that a disclosure may be required of a party by a legal duty, to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a judicial authority".

Ethical codes
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

No specific ethical rules or professional standards apply to arbitrators and counsel in arbitration proceedings. In case of doubt, each participant must live up to his own applicable professional rules or ethical standards. This is sometimes considered problematic, because it creates different standards for participants in the same proceedings.

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