Newsletter - 1/2017
Topics:
What's Next? Revision of the Swiss Rules of Commercial Mediation: Call for feedback,
information and ideas
Takeaways from the 2017 SCAI Innovation Conference
Recent Case Law of the Swiss Federal Supreme Court
Upcoming Events & Save the Dates
Jop Opening in Zurich
Move of Zurich offices - 2 day closing
Past Events & Pictures
WHAT'S NEXT?
Revision of the Swiss Rules of Commercial Mediation
Call for feedback, information and ideas
In our last newsletter, you would have read about SCAI's latest innovation: the one-of-akind turbo customizable arbitration clause, which allows companies to agree in advance on
standard, expedited or super-expedited arbitration proceedings, in conjunction with the
option to mediate at any time during the proceedings. You may also have attended our
monthly Mediation Breakfast on 1 February, during which we reviewed and debated new
trends for hybrid dispute resolution processes, including Med/Arb, Arb/Med, and the most
recent Arb/Med/Arb procedure. Finally, you may have heard about, or participated in, SCAI's
very first Innovation Conference on 2 February 2017, at which we discussed procedural and
technical innovations aimed at expediting arbitration proceedings even more in the future.
SCAI is working on its next projects for this year, most notably the revision of the Swiss
Rules of Commercial Mediation. For the purpose of this revision, we are calling upon all of our
readers and users of the Rules to provide feedback on the current Rules, share relevant
experience and provide ideas for the revised version. We strongly encourage you to
participate in the process, tell us what you believe should be included, or should not be
included, in the revised version and why, including on the basis of any experience you may
have had and you believe is worth sharing with us. We want this revision to be based on a
wider consultation, not only of practicioners and mediation specialists, but also of the users of
mediation.
Please write to us at: [email protected]. You are also welcome to join us for a
discussion on this topic at our next Mediation Breakfast, which will take place on 5 April 2017
in Geneva (see under Upcoming Events below).
Takeaways from the
2017 SCAI Innovation Conference
on Expedited Proceedings and their Limits
The first SCAI Innovation Conference was successfully held on 2 February 2017 in Geneva.
Attendance to the conference was limited to 60 persons and every single seat was filled by
arbitration practitioners and professionals from around the world. The goal of the conference
was to explore ways to expedite arbitration proceedings, the limits and risks of expedited
proceedings, and how traditional methods could be revamped and improved by the use of
new formats. The turn-out and the lively discussion which took place during the conference
demonstrates the relevance of this topic to the arbitration community.
In an effort to keep track of the great ideas shared during the conference as well as allow the
debate to continue, SCAI has prepared a report – the First Innovation Paper – where it has
highlighted the main takeaways from the conference. These will serve as discussion points for
the arbitration community going forward, and as guiding posts for next years's SCAI
Innovation Conference. The main takeaways, in terms of well-received ideas to expedite
arbitral proceedings, are the following:
• Escape Clause: An escape clause from previously agreed expedited proceedings, to be
applied by the arbitral tribunal and/or the arbitral institution upon request from a
party. Such a clause would allow the parties to agree in advance on expedited
proceedings, when signing their contracts, while still allowing them enough flexibility to
escape from, or opt out of, such proceedings in case they become impracticable in
future disputes.
• Early Guidance from the Arbitrator: More systematic early guidance by the arbitrators
to the parties and their counsel of the arbitral tribunal's views regarding the most
relevant substantive aspects of a particular case in order to make expedited
proceedings more focused and time-efficient. Such early guidance could, for example,
take place in a legal discussion between the arbitral tribunal and counsel at the first
organizational conference.
• Issues Addressed in the Arbitral Award: Input from the parties, at the start of the
arbitration proceedings, so as to decide and define the issues they expect the arbitral
tribunal to address in the award and how detailed they require the arbitral tribunal to
be about certain aspects, such as the procedural history or summary of the facts. The
parties may also want to consider deciding that the arbitral tribunal is to give a
summary award, or even an oral award.
• Ex Aequo et Bono/Commercial Considerations: Due consideration to allowing the
arbitral tribunal to decide the case ex aequo et bono, or, based primarily on the
commercial interests of the parties, to avoid lengthy submissions and pleadings on the
applicable law. The parties may also decide that the applicable law shall not, in any
event, be the most decisive factor for the arbitral tribunal in reaching its decision.
For a more detailed account of the conference, please refer to the First Innovation Paper.
The first panel, whose topic was "Expedited
Proceedings and their Limits in Traditional Formats".
From left: Ms. Ulrike Gantenberg, partner of Heuking
The second panel, whose topic was "Expedited
Proceedings in New Formats". From left: Mr. Heiner
Kahlert, partner of Martens Rechtsanwälte; Mr. Jan
Kühn Lüer Wojtek; Mr. Boris Vittoz, partner of CPV;
and Dr. Rafal Morek, partner of K&L Gates.
Heiner Nedden, partner of Hanefeld Rechtsanwälte;
and Ms. Heike Wollgast, Senior Legal Officer at WIPO.
The Conference was well attended by 60 participants
from all around the world who contributed to the
important discussion and connected with colleagues.
Ms. Sandra De Vito Bieri, partner of Bratschi
Wiederkehr & Buob, and Mr. Simon Gabriel, partner of
Gabriel Arbitration, gave their concluding remarks and
shared the main take-aways from the day.
Recent Case Law of the Swiss Federal Supreme Court
In a recent judgment, the Swiss Federal Supreme
Court addressed the issue of whether a decision of the SCAI
Arbitration Court can be subject to an appeal or application to
set aside before the Supreme Court. The arbitration clause,
on which the parties relied, did not provide for the number of
arbitrators and the parties were unable to reach an
agreement on that issue. As a result, the decision was to
be made by the SCAI Arbitration Court pursuant to Article 6
(1) of the Swiss Rules of International Arbitration. The
Arbitration Court, taking into account all of the relevant
circumstances, decided that the case should be referred to a
Sole Arbitrator. An application to set aside was brought
against that decision. The Supreme Court held that a decision
of the SCAI Arbitration Court could not be challenged as it did
not qualify as an arbitral award and the application was
rejected as inadmissible.
In essence, this judgment means that decisions made by the
SCAI Arbitration Court according to the Swiss Rules, which
aim to avoid a dead-lock in arbitration proceedings and make
sure that they run smoothly and efficiently, cannot be
challenged; only the decisions of the arbitral tribunal / a sole
arbitrator can be. This also confirms yet again the arbitrationfriendly, "hands-off" approach of the Supreme Court and the
Swiss regime.
Upcoming Events
We are pleased to invite you to the forthcoming event organized by SCAI:
Le Règlement suisse d'arbitrage au service des entreprises
Serving the needs of companies: the Swiss Rules of International Arbitration
17 March 2017, 9:00-11:00, Swiss Embassy, 142 Rue de Grenelle, Paris
This conference (in French) will serve to introduce the Swiss Rules of International Arbitration
to Paris-based entrepreneurs, business developers, lawyers, and legal counsel. The focus will
be on how companies signing international contracts can benefit from SCAI's cost-efficient
and expeditious dispute resolution services (both arbitration and mediation).
Distinguished French and Swiss arbitration practitioners and SCAI representatives will be
present, most notably Mr. Philippe Pinsolle, partner of Quinn Emanuel in Paris; Mr. Boris
Vittoz, partner of CPV Partners in Lausanne; Mr. Christophe Ingrain, partner of Darrois Villey
Maillot Brochier in Paris; Mr. Vincent Subilia, Deputy Director of CCIG and SCAI Board
Member; Ms. Caroline Ming, SCAI Executive Director; and Ms. Jennyfer Dreyfuss, Legal
Counsel of SCAI in Geneva.
There is no attendance fee, but registration is required. Attendance is limited to 50 persons
and applications are accepted on a first come, first served basis. More information and
registration is available here. We look forward to seeing many of you in Paris!
Save the Dates!
We also invite you to note the following events in your calendars:
Arbitration Breakfast in Zurich: E-Discovery in Arbitration Proceedings
Zurich, 16 March 2017, 08:00-09:30. SCAI @ ZHK, Selnaustrasse 32, 5th floor. This event
will focus on the current issue of e-discovery in arbitration proceedings. It is free of
charge, but registration is required. More information and registration is available at
[email protected].
ArbitralWomen Breakfast Meeting and Panel Discussion: Gathering and Weighing
Evidence in Parallel Emergency Arbitration Proceedings
Milan, 31 March 2017, 07:15-08:45. Organized by ArbitralWomen in cooperation with SCAI
and DLA Piper. This breakfast meeting will take place at DLA Piper's office at Via della Posta
7, Milan, as the arbitration community will be gathered in the city for the IBA 20th Annual
International Arbitration Day Conference. A shuttle service, generously sponsored by SCAI,
will be provided between Marriott Hotel and the venue, to ensure participants arrive on time
for the IBA Conference's first session. The full program is available here.
Mediation Breakfast - P'tit Déjeuner de la Médiation - Revision of the Swiss Rules of
Commercial Mediation
Geneva, 5 April 2017, 08:15-09:30. Organized by the CSMS (Suisse Romande), CCIG and
SCAI at SCAI @ CCIG offices, 4, bd du Théâtre, 2nd floor, Geneva. This mediation breakfast
will be the 2nd event organized on this theme and will allow mediation users and
practitioners to discuss potential areas of improvement of the Swiss Rules of Commercial
Mediation with SCAI. There is no fee to attend and registration is not needed. Further similar
events may be held in other cities upon request to [email protected].
IV Annual RAA Conference and Members' Meeting
Moscow, 20 April 2017, at 08:30-18:30. Venue: Marriott Grand Hotel, 26/1 Tverskaya Street,
Moscow. Organized by the Russian Arbitration Association (RAA). Topics will include: Russian
arbitration reforms, 2016 landmark arbitration cases in Russia, inquisitorial rules of evidence
and women in arbitration. The full program and registration details are available here.
~~~
A full list of all our events is available on our website.
Job Opening in Zurich
SENIOR INTERNATIONAL LEGAL COUNSEL
HEAD OF SCAI ZURICH OFFICE
We are currently looking for a meticulous and dynamic legal
counsel, with an excellent command of both German and
English, to head our Zurich office. The legal counsel will
administer arbitration and mediation cases under the Swiss
Rules, as well as perform various other activities, including
marketing and promotion of our services. Experience in
arbitration
and
mediation
is required
and any
additional language is an advantage. A part-time position
may be considered. Interested candidates should send their
CV, main recommendation letters and Cover Letter,
indicating dates of availability, desired working time
percentage (full/part time) and work permit status, to:
[email protected].
Move of the SCAI Zurich office and Zurich Chamber of Commerce
Please be informed that the Zurich office of the SCAI Secretariat and the Zurich Chamber of
Commerce will be moving to Löwenstrasse 11 at the end of April. The office will therefore
be closed from the evening of 27 April until 2 May 2017. To ensure the timely administration
of cases during this transition period, we advise parties and counsel to send notices and
urgent communications as early as possible by e-mail to [email protected] and to
consider sending new cases temporarily to the Geneva office ([email protected];
postal address here).
Past Events
The World Litigation Forum in Dubai
Ms. Valériane Oreamuno, Senior Legal Counsel of the Secretariat in Geneva, represented
SCAI at the World Litigation Forum which took place in Dubai on 18-19 January 2017. Ms.
Oreamuno was invited to attend the conference as a speaker and debated on the topic of
"Best Practices, Challenges and Solutions in International Arbitration". This conference,
attended by in-house counsel and practitioners from the Middle-East, Asia and Europe, was
the perfect opportunity to talk with possible future users about the features and advantages
of the Swiss Rules of International Arbitration and the practice of the SCAI Arbitration Court.
The panel, from left: Mark Kelly, Senior Legal
Counsel, Johnson Controls in Dubai; Valériane
Oreamuno, Senior Legal Counsel at SCAI in Geneva;
Mohamed ElGhatit, Director & Registrar, DIFC│LCIA
Arbitration Center in Dubai; and Natasha Liston
Williams, Global Litigation & Investigations in Paris.
Ms. Valériane Oreamuno and Ms. Natasha Liston
Williams, Global Litigation & Investigations in Paris.
Events in Iran
SCAI had the great pleasure of participating in two events in Tehran in February 2017,
starting with a discussion with judges and law professors on the enforcement of arbitral
awards, organized by Mr. Shariat Bagheri and Mr. Amir Masood Mazaheri, at the University of
Judicial Sciences and Administrative Services. The next day, SCAI participated in a seminar
organized by the Iran-Switzerland Chamber of Commerce about the role of arbitration and
the advantages of inserting a clause referring to the Swiss Rules of International Arbitration
in international contracts. With the excellent support of Ms. Assieh Mir of the ISCC, SCAI was
represented by Dr. Martin Burkhardt, Dr. Urs Weber-Stecher and Ms. Caroline Ming, while Dr.
Ali Naimi, Dr. Gholamreza Rafiei, Dr. Ardeshir Atai and Ms. Parisa Memarian presented the
Iranian perspectives.
Dr.
Shariat
Bagheri,
President, with
Law
Professors and Judges at the University of Judicial
Sciences and Administrative Services in Tehran, with
Dr. Martin Burkhardt, Ms. Caroline Ming, Dr. Urs
Weber-Stecher
From left: Dr. Martin Burkhardt, Dr. Gholamreza
Rafiei, Dr. Ardeshir Atai, Ms. Parisa Memarian,
Ms. Caroline Ming, Dr. Urs Weber-Stecher, and Dr. Ali
Naimi.
P'tit Déjeuner de la Médiation: Revision of the Swiss Rules of Commercial Mediation
As a rule, every first Wednesday of each month, SCAI and the CCIG host in their offices in
Geneva an 08:00-09:30am Mediation Breakfast organized by the CSMS (Section Romande)
gathering mediators and mediation users. This March, the mediation breakfast focused
on brainstorming and gathering ideas for the upcoming revision of the Swiss Rules of
Commercial Mediation. The moderators were Mr. Jeremy Lack, Independent ADR Neutral and
Attorney-at-Law with LAWTECH, and Dr. Jorge Huerta-Goldman, the Managing Director
and Founder of TILPA. Further breakfast meetings will be held on the same subject as more
time will be needed to gather all ideas, discuss those and allow all interested parties to
participate and raise their voice. No registration is required. Invitations are sent to persons
having required to be added to the dedicated mailing list but information can also be obtained
on our website and from our Geneva office at: [email protected].
Presentation at the MIDS Program
On 10 February 2017, SCAI had the great pleasure of giving a presentation to the talented
students of the MIDS program in Geneva (LL.M. in International Dispute Settlement). Ms.
Valériane Oreamuno, Senior Legal Counsel of the SCAI Secretariat in Geneva, and Mr.
Vincent Subilia, Deputy Director of CCIG and SCAI Board Member, gave a general
presentation on the services of SCAI, as well as the main features and advantages of the
Swiss Rules of International Arbitration. The SCAI team wishes the students all the best for
their future careers in the field of international dispute settlement.
The MIDS group together with Ms. Valériane Oreamuno and Mr. Vincent Subilia. This year's MIDS class is
composed of 37 students who come from 18 countries around the world.
Swiss Chambers' Arbitration Institution
Ms. Disa Hjartardóttir & Ms. Caroline Ming, Executive Director and General Counsel
www.swissarbitration.org
Switzerland, 7 March 2017