In a recent decision,(1) the Supreme Court confirmed the validity of an exclusion agreement, whereby the parties had excluded all appeals against the arbitral award pursuant to article 192(1) of the Private International Law Act.(2) Thus, the Surpeme Court dismissed the challenge.


The dispute arose out of two engineering service agreements which provided for the parties' cooperation in relation to the development of drive systems for electric and hybrid buses. The agreements contained an arbitration clause in favour of International Chamber of Commerce arbitration, and included the following wording:

The decision of the Arbitration Committee shall be final and binding upon both parties. Neither part shall seek recourse to a law court or other authorities to appeal for revision of the decision.

In arbitration proceedings started on the basis of the aforementioned arbitration clause, the arbitral tribunal dismissed part of the claims. Thus, the claimant challenged the award before the Supreme Court.


The Supreme Court had to determine whether the parties had validly excluded all appeals against the award pursuant to article 192(1) of the Private International Law Act.

The Supreme Court recalled its well-established practice whereby an exclusion agreement:

must unequivocally express the parties' common intention to avail themselves of the option under [Article 192(1) of the Private International Law Act] and to waive the right to challenge the international arbitral award.(3)

Whether an exclusion agreement expresses such an intention must be established by interpretation.(4) The Supreme Court also referred to a previous case, in which the parties had stipulated an exclusion agreement similar to that quoted above, the validity of which was upheld despite the disparate use of different appeal terms (eg, "recourse", "appeal" and "revision").(5)

In the present case, the Supreme Court found that the claimant had not established any common and true intention of the parties to deviate from the clear and unambiguous wording of the arbitration clause, which excluded any right of appeal against the award. In particular, the Supreme Court rejected the claimant's arguments that the parties had used "standardized contractual language" and "boilerplate contracts", without specifically negotiating them, and that the "parties' consistent course of dealing" supported the absence of an exclusion agreement, as former contracts entered into by the same parties did not contain any such agreement.(6)

The Supreme Court also rejected the claimant's argument that the engineering service agreements were drafted by the parties without any legal assistance or expertise in Swiss international arbitration law, as well as the claimant's unsubstantiated argument that its consent to the exclusion of appeals had been vitiated by a fundamental defect in consent.(7)

Thus, the Supreme Court dismissed the challenge without examining the merits of the case.


This decision confirms the Supreme Court's well-established practice that an exclusion agreement within the meaning of article 192(1) of the Private International Law Act is valid if the parties unequivocally express their intention to exclude all appeals against the award, even if:

  • the wording used does not reflect the proper appeals terminology; or
  • there is no express reference to this provision in the exclusion agreement.

For further information on this topic please contact Daniela Franchini or Frank Spoorenberg at Tavernier Tschanz by telephone (+41 22 704 3700) or email ([email protected] or [email protected]). The Tavernier Tschanz website can be accessed at www.taverniertschanz.com.


(1) Supreme Court, 4A_382/2021, 24 September 2021.

(2) Article 192(1) of the Private International Law Act provides that:

[i]f none of the parties has their domicile, habitual residence or seat in Switzerland, they may, by a declaration in the arbitration agreement or by subsequent agreement, wholly or partly exclude all appeals against arbitral awards; they may limit such proceedings to one or several of the grounds listed in Article 190 paragraph 2; the right to a review under Article 190a paragraph 1 letter b may not be waived. The agreement requires the form specified in Article 178 paragraph 1.

(3) Ground 2.2.1.

(4) Ground 2.2.1.

(5) Ground 2.2.2, referring to Supreme Court, 4A_577/2013, 3 April 2014.

(6) Ground 2.2.3.

(7) Ground 2.2.4.