On 24 October 2018, the Swiss Federal Council published the draft bill for the revision of the Swiss international arbitration law (chapter 12 of the Federal Act on International Private Law, "PILA") and an explanatory text (both available here). The purpose of the revision is to softly modernise chapter 12 of the PILA and to ensure the continuing attractiveness of Switzerland as a seat for international arbitration.
The revision focuses on codifying case law of the Swiss Federal Tribunal. In particular, the draft bill addresses specific provisions dealing with:
- revision of arbitral awards;
- the duty of a party to object immediately to procedural deficiencies in proceedings; and
- remedies for the correction, explanation and amendment of an award
Further, the revision introduces some moderate amendments to the PILA, including:
- clarification that the PILA applies if at least one party had a seat in Switzerland when concluding the arbitration agreement.
- simplification of the language regarding form requirements and confirmation that arbitration agreements in unilateral texts (e.g. articles of association) are valid.
- explicit rules on the appointment process in case there is no agreement between parties. Currently, there is only a mere reference to the provisions of the Swiss Code of Civil Procedure. These new rules also include a provision on how to deal with an arbitration agreement that does not designate the seat of the arbitration.
- direct access by foreign parties and foreign seated arbitral tribunals to Swiss state courts for assistance (juge d'appui). This is particularly relevant for the enforcement of interim measures and the taking of evidence
- allowing for applications to the Swiss Federal Tribunal for setting aside an arbitral award (and subsequent legal briefs) to be drafted in English.
Compared to the preliminary draft of the bill published in January 2017, the amended draft does not contain any provision on the arbitral tribunal's power or duty to render an award on costs. Also, the provision regarding more relaxed form requirements for arbitration agreements (making it sufficient that only one party complies with the form requirement) has been dropped.
It is important to note that the revised PILA – once in force – will also apply to arbitration agreements concluded before it entered into force. Thus, potential amendments to the Swiss international arbitration law should now be considered when concluding an agreement providing for arbitration with seat in Switzerland.
The draft bill is now going to Parliament for deliberation.
For more information on the revision of Swiss arbitration law and the contents of this eAlert, please contact: