In a German-language decision dated 1 May 2018, the Swiss Supreme Court rejected an application to set aside an interim award made by an ad hoc arbitration tribunal in a dispute between a German aid organisation and a Swiss lawyer (L).
The ad hoc tribunal had declared itself competent to hear the parties' dispute regarding, amongst other things, the return of a share certificate. The organisation based its claim for the return of the share certificate on an arbitration agreement contained in a mandate agreement between L and his now deceased client, on behalf of whom L held the certificate. After the client's death, the certificate became part of the client's estate to which the organisation was the sole heir. However, L refused to return the certificate claiming a retention right pursuant to Swiss law to secure his outstanding payments under the mandate agreement but also under other agreements.
In an interim award, the tribunal confirmed its jurisdiction to hear all of L's claims for outstanding payments. L requested the setting aside of this award. He argued, amongst other things, that part of his claims for outstanding payments fell outside the scope of the arbitration agreement contained in the mandate agreement.
The Swiss Supreme Court held that based on an objective interpretation, the arbitration agreement in the mandate agreement extended to all claims for outstanding payments which fulfill the requirement of the retention right under Swiss law, that is, those which have a link between the object of retention (the share certificate) and the retention claim(s) (the outstanding payments).
This is the first decision in which the Supreme Court has expressed itself with regard to the jurisdiction of a tribunal over retention claims.
Case: Decision 4A_583/2017.