In brief: enforcing and challenging arbitral awards in Switzerland

Proceedings subsequent to issuance of award

Does the arbitral tribunal have the power to correct or interpret an award on its own or at the parties’ initiative? What time limits apply?

Pursuant to the revised article 189(a)(1) of the Federal Statute on Private International Law, which entered into force on 1 January 2021, unless otherwise agreed by the parties, every party may file an application to the arbitral tribunal, within 30 days of notification of the award, for the correction and interpretation of the award. Within the same time frame, the arbitral tribunal, on its own initiative, may correct, interpret or complete the award.

The rules for domestic arbitration (ie, Part 3 of the Civil Procedure Code) also provide for the possibility of a correction or interpretation of an award (article 388(1)(a) and (b) of the Civil Procedure Code). The application must be made to the arbitral tribunal within 30 days of the discovery of the error or the parts of the award that need to be explained or amended, but no later than one year from receiving notice of the award (article 388(2) of the Civil Procedure Code).

Pursuant to the Swiss Rules of International Arbitration, within 30 days of the receipt of the award, a party, with notice to the Secretariat and to the other parties, may request the arbitral tribunal to give an interpretation of the award or to correct in the award any errors in computation, any clerical or typographical errors, or any errors of similar nature, or make an additional award as to claims presented in the proceedings but omitted from the award (article 37(1) of the Swiss Rules of International Arbitration 2021).

How and on what grounds can awards be challenged and set aside?

The rules on international arbitration allow the parties to challenge an arbitral award, that must be filed within 30 days of the communication of the award, by way of annulment proceedings on the basis of one of the grounds exhaustively listed in article 190(2) of the Federal Statute on Private International Law as follows:

• the tribunal was irregularly constituted or the sole arbitrator was improperly appointed (article 190(2)(a) of the Federal Statute on Private International Law);
• the tribunal wrongly accepted or declined jurisdiction (article 190(2)(b) of the Federal Statute on Private International Law);
• the tribunal’s decision went beyond the claims submitted to it or failed to address one of the items of the claim (article 190(2)(c) of the Federal Statute on Private International Law);
• the principle of equal treatment of the parties or the right of the parties to be heard was violated (article 190(2)(d) of the Federal Statute on Private International Law); or
• the award is incompatible with public policy (article 190(2)(e) of the Federal Statute on Private International Law).

According to article 190(3) of the Federal Statute on Private International Law, interim (or preliminary) awards (as opposed to final awards) may be challenged only on the basis of a violation of article 190(2)(a) of the Federal Statute on Private International Law (irregular constitution of the tribunal) or article 190(2)(b) of the Federal Statute on Private International Law (incorrect ruling on jurisdiction).

If the Swiss Federal Supreme Court decides that one of the grounds listed in article 190(2) of the Federal Statute on Private International Law is fulfilled, it will set aside the award. The Federal Supreme Court will generally not issue its own decision replacing the award, and will instead refer the matter back to the same tribunal for reconsideration. An exception is where the Federal Supreme Court decides on the constitution of the tribunal or the jurisdiction of the tribunal. 

As case law shows, the Swiss Federal Supreme Court is reluctant to set aside arbitral awards and the success rate of appeals brought before the Swiss Federal Supreme Court is very low.

How many levels of appeal are there? How long does it generally take until a challenge is decided at each level? Approximately what costs are incurred at each level? How are costs apportioned among the parties?

Under Swiss law, an arbitral award may be challenged only before the Swiss Federal Supreme Court (article 191 of the Federal Statute on Private International Law). The proceedings are governed by the Federal Statute on the Swiss Federal Supreme Court of 17 June 2005. Appeals against arbitral awards may be brought before the Swiss Federal Supreme Court with the uniform appeal in civil matters (article 77(1) of the Federal Statute on the Swiss Federal Supreme Court). Set aside proceedings before the Swiss Federal Supreme Court last approximately six to nine months on average.

The court costs of a setting aside proceeding depend on the amount in dispute, scope and difficulty of the case and are limited to a maximum of 200,000 Swiss francs. The petitioner will be required to pay an advance on costs, and if the petitioner does not have a permanent residence in Switzerland it may be obliged, at the request of the other party, to pay a security for party costs. As a rule, the losing party will be obliged to reimburse the winning party for its necessary costs for legal representation.

What requirements exist for recognition and enforcement of domestic and foreign awards, what grounds exist for refusing recognition and enforcement, and what is the procedure?

Any award rendered by an international arbitral tribunal in Switzerland is final from its notification (article 190(1) of the Federal Statute on Private International Law). The term ‘final’ means both that the award is enforceable and that it has binding effect by operation of law. Thus, no additional state court scrutiny is needed for an award rendered by an international tribunal with seat in Switzerland to be enforceable and have binding effect.

The recognition and enforcement of a foreign arbitral award is governed by the New York Convention. This also applies to awards rendered in a non-member state of the New York Convention (article 194 of the Federal Statute on Private International Law).

Is there a limitation period for the enforcement of arbitral awards?

Swiss arbitration law does not provide for a limitation period with regard to the enforcement of awards, as from a Swiss law perspective limitation periods are issues of substantive law.

What is the attitude of domestic courts to the enforcement of foreign awards set aside by the courts at the place of arbitration?

The recognition and enforcement of a foreign arbitral award is governed by the New York Convention. According to article V(1)(e) of the New York Convention recognition and enforcement can be refused if the award has been set aside by a competent authority of the country of which, or under the law of which, that award was made.

Does your domestic arbitration legislation, case law or the rules of domestic arbitration institutions provide for the enforcement of orders by emergency arbitrators?

According to article 43(8) of the Swiss Rules of International Arbitration 2021, decisions of emergency arbitrators shall have the same effects as interim measures. According to article 183(2) of the Federal Statute on Private International Law, an arbitral tribunal or a party may request the assistance of the state court judge if a party does not voluntarily comply with any interim measures ordered against it.

What costs are incurred in enforcing awards?

The enforcement proceedings of monetary awards are governed by the statutory tariffs on debt enforcement and bankruptcy. The fees for the proceedings in which the domestic award is recognised depend on the value of the amount at stake.

Court fees for the enforcement of non-monetary awards are dealt with in the cantonal court fee ordinances and may vary within Switzerland from canton to canton.