Switzerland Performs Exceptionally Well in the 2017 Statistical Report of the ICC
The International Chamber of Commerce (“ICC”) published end of July 2018 its statistical report relating to dispute resolution in 2017 (the “ICC’s 2017 Report”).
The ICC’s 2017 Report confirms the leading role that Switzerland, Swiss arbitrators and Swiss law continue to play in international arbitration.
Switzerland was the second most frequent seat for ICC arbitrations with 90 cases. It was preceded only by France, and was ranked ahead of the United Kingdom and the US. Geneva was picked as the seat in 51 cases, while Zurich was chosen 36 times. Combined, arbitrations seated in Geneva and Zurich amounted to 13% of all ICC arbitrations.
Switzerland was the third most frequent nationality of arbitrators appointed and confirmed in ICC arbitrations with 7.8% of the total number. Together with arbitrators from the United Kingdom and France, Swiss arbitrators were globally within the top three.
As for the contractual choice of law made by the parties, Swiss law has been the fourth most frequent choice.
The Reasons for Switzerland’s Continued Success
Switzerland has a long standing tradition to serve as the seat for international disputes. Thanks to its very arbitration friendly legal framework, and overall encouraging factors such as Switzerland’s neutrality, stability and business friendly environment, Switzerland has remained a top choice for international arbitration for parties from all over the world. While safeguarding the parties’ equal treatment and their right to be heard, Swiss arbitration law is appreciated for its procedural flexibility and respect for party autonomy. Swiss arbitration law acknowledges and Swiss state courts strictly adhere to the principle that arbitrators decide on their own jurisdiction (commonly referred to as Kompetenz-Kompetenz or compétence-compétence); there is, therefore, no risk of local court intervention frustrating an arbitration seated in Switzerland.
A motion to set aside an international arbitration award can only be filed before the Swiss Federal Supreme Court based on very limited and narrowly defined grounds. A review of the award on the merits is limited to the question of whether the award is incompatible with public policy, a test to which a very high threshold applies. The Swiss Federal Supreme Court has consistently shown considerable restraint when adjudicating setting aside motions.
Switzerland, furthermore, offers a large pool of highly qualified Swiss arbitrators who often have a good command of several languages. The Swiss arbitration community consists of highly trained practitioners who regularly organise seminars and conferences, in which practical insights are shared and thoughts are exchanged with the goal to provide the best service possible for the users.
Finally, the popularity of Swiss law may be explained by Switzerland’s liberal economic order. Swiss contract law is business friendly and emphasises party autonomy. The Swiss Constitution guarantees economic freedom, and one aspect of it is the principle of contractual freedom. Swiss contract law expressly provides that the parties may freely determine the terms of a contract within the limits of the law. Professional parties therefore enjoy much freedom in tailoring their contracts.