Newsletter - 4/2016
Topics:
SCAI's New Customizable Arbitration Clause
ACT - Alternative Dispute Resolution for Commodity Trading, Shipping and Trade Finance
Recent Case Law of the Swiss Supreme Court
Upcoming and Past Events
Holiday Opening Hours
End-of-Year Wishes
ALWAYS ONE STEP AHEAD
New Customizable Arbitration Clause
Faster & Cheaper
Building upon 150 years of documented arbitration services, SCAI aspires to provide
innovative and cost-effective solutions to meet companies' needs in an evolving business
environment. To this end, SCAI was the very first international arbitral institution to introduce
expedited proceedings, originally in the 1992 CCIG Arbitration Rules and subsequently in the
2004 Swiss Rules (both available here), and was also among the first institutions to introduce
emergency relief proceedings in 2012. In an effort to further address and appreciate
companies' needs, SCAI hired Ms. Caroline Ming in 2015, whose extensive experience as inhouse counsel for a multi-national corporation gives her a valuable business-perspective on
international dispute settlement, which should be about solving disputes quickly so that
businesses can focus on growth and development.
SCAI's latest initiative is the developement of a one-of-a-kind customizable arbitration clause,
which allows companies to agree in advance on super-expedited arbitration proceedings. The
customizable arbitration clause allows companies to tailor the arbitration clause to their
specific needs, while ensuring the effectiveness of the clause and the resulting arbitral award.
The Model Arbitration Clause lays the foundation for the customizable arbitration clause,
which offers four different options aimed at saving time and cost. These options, which may
be chosen individually or all together, are as follows: (1) Expedited Procedure, with a sole
arbitrator and final award in 6 months; (2) Documentary evidence only (i.e. no hearing for
oral arguments or witnesses); (3) Faster response time for the Respondent's Answer (15
days instead of 30); (4) Faster constitution of the arbitral tribunal (15 days instead of 30).
The customizable clause also provides parties with the option to initiate mediation under the
Swiss Rules of Mediation at any time before or during the arbitral proceedings.
The options can be chosen by simply clicking on the relevant parts of the customizable
arbitration clause and then on “Show Arbitration Clause” below. The resulting arbitration
clause can then be e-mailed forward or copied directly into a contract.
The clause has been tested for 3 years by the Geneva trading community and has received
positive feedback. SCAI is confident that it will assist companies in need of speedy dispute
resolution to move forward quickly and focus on what they do best: creating value for the
future. To learn more, click here.
ACT - Alternative Dispute
Resolution for Commodity
Trading, Shipping and Trade
Finance
Upon the request of the large commodity trading community in Switzerland, the Swiss
Trading and Shipping Association (STSA), the Geneva Chamber of Commerce (CCIG) and
SCAI have compiled a list of highly specialized and quickly available arbitrators and mediators
for disputes in the field of Commodity Trading, Shipping and/or Trade Finance.
ACT is the result of a long lasting collaboration between the CCIG, the STSA and SCAI. ACT is
designed for commodity trading, shipping and trade finance companies to resolve their
disputes in the quickest and most efficient way possible. Due to various trade-related factors,
actors of the trading community have an acute need for speedy dispute resolution.
The list of arbitrators and mediators has been compiled to facilitate and speed up the parties'
search for the appropriate neutral for their case. It includes highly specialized individuals in
the fields of commodities trading, shipping, and/or trade finance, as well as in specific
commodities (e.g. oil, steel, or grains), who are based in Switzerland or regularly present in
Switzerland. The initial list was compiled by an independent Selecting Committee, composed
of leading members of the arbitration and trading community, as well as members of the
STSA, the CCIG and SCAI. The list, which continues to grow as new applications are received
and approved, is now available here.
Together with the customizable arbitration clause, the easily accessible and reliable list of
arbitrators and mediators will enable commodity trading, shipping and trade finance
companies to resolve their disputes as quickly and efficiently as possible.
Recent Case Law of the Swiss Supreme Court
Recent case law of the Swiss Supreme Court confirms its liberal and arbitration-friendly
approach, with a continuing low success rate of challenges against arbitral awards (3.4% for
the period from mid-2015 to mid-2016; see Dr. Jonatan Baier, Review of the Recent Case
Law of the Swiss Federal Supreme Court in Müller, Besson and Rigozzi (eds.), New
Developments in International Commercial Arbitration 2016, 109). The Supreme Court finds
pragmatic ways to deal with non-compliance of pre-arbitration procedures; takes substance
over form to determine the true intent of the parties; and honours the parties' autonomy to
the greatest extent. Below are summaries of three recent decisions which show the benefits
of choosing a Swiss city as the seat of arbitration in international contracts.
Non-Compliance With Pre-Arbitration Procedures May
Be Rectified
In a decision of 16 March 2016, the Swiss Supreme Court
addressed the consequences of parties failing to comply with
mandatory pre-arbitration procedures. The Supreme Court
found that the Parties had not properly attempted conciliation,
as was required by their multi-tiered arbitration clause, and
hence that the arbitral tribunal lacked jurisdiction ratione
temporis. However, instead of terminating the arbitration
proceedings and prolonging the entire process, the Supreme
Court concluded that the best solution in terms of procedural
efficiency would be to stay the arbitration until completion of
the conciliation. The Supreme Court also noted that, as
conciliation requests would not stop the statute of limitations,
a claimant might lose its claim altogether if it was forced to file
it again after a conciliation process. Accordingly, the Supreme
Court annulled the award on jurisdiction and stayed the
arbitration proceedings until the Parties had properly
attempted conciliation, leaving it to the arbitral tribunal to
decide the exact terms of the stay and time-limit of the
conciliation attempt. The judgment is available in its original
version (French) here and in English here.
It should be noted that the SCAI mediation/arbitration clause
(“Med-Arb” clause) contains a clear-cut time-limit of 60 days
for pre-arbitration mediation proceedings and thus avoids
disputes about non-compliance with such procedures.
Moreover, to avoid such disputes, SCAI's new customizable
arbitration clause merely provides parties with the option to
attempt mediation at any time before or during the arbitration
proceedings, without imposing any obligation on the parties.
Arbitration Agreement May Survive
Existence of the Main Contract
the
Non-
In a decision of 18 February 2016, the Swiss Supreme
Court addressed the validity of a Swiss Rules arbitration
clause contained in a draft Framework Contract, which
had been exchanged between the parties but was never
signed. The Appellant argued that the Sole Arbitrator was
wrong to accept jurisdiction, as the Framework Contract and hence the arbitration agreement - had never been
entered into. The Supreme Court rejected the Appeal,
holding inter alia that: pursuant to the principle of
severability, the arbitration agreement is independent
from the main contract; the possible non-existence of the
main contract does not automatically impact the
arbitration agreement; Swiss International Arbitration
Law (the PILA) requires an arbitration agreement to be in
writing, but not to be signed; and the exchange of drafts
between the Parties in the present case meets the
requirement of written form and sufficiently reveals their
common intent to resort to arbitration in accordance with
the Swiss Rules of International Arbitration. Importantly,
the Court also noted that, in order to avoid any
uncertainty as to when an arbitration agreement
becomes binding, parties are free to clarify from the
outset of their negotiations that they will only be bound
by an arbitration agreement once the main contract has
entered into force. The judgment is available in its
original version (French) here and in English here.
Enforcement of Parties' Own Agreement Does Not
Violate Right to Be Heard
In a decision of 29 June 2016, the Swiss Supreme Court
considered whether Parties may validly agree to limit the first
phase of arbitration proceedings to one round of written
submissions and whether the arbitral tribunal, by enforcing
such an agreement, violated the claimants' right to be heard.
The Supreme Court noted that it was bound by the arbitral
tribunal's finding that the parties had indeed agreed to limit
the first phase of the proceedings to one round of
submissions. Moreover, the Supreme Court found that: the
claimants had agreed to this limitation and were fully aware of
the consequences; there was no inequality of treatment
between the parties as they were given the same opportunity
to present their case; the quasi-absolute right to respond to
any substantive pleading in state court proceedings does not
apply in international arbitration; and the limitation did not
affect the very core of the claimants' right to be heard.
This decision highlights one of the key features and benefits of
arbitration, namely the flexibility and freedom of parties to opt
for extra expediency. The flip-side is that parties must take
responsibility for their decisions: also when things don't go
their way. The judgment is available in its original version
(French) here and an English translation will be published in
due course here.
Upcoming Events
We are pleased to invite you to the forthcoming event that SCAI will organize:
SCAI Innovation Conference 2017
on Expedited Proceedings and their Limits
2 February 2017, 13:00-17:00, Hotel President Wilson, 47 Quai Wilson, 1201 Geneva
This conference will focus on traditional and innovative ways to expedite arbitral proceedings.
Participants will be encouraged to comment on the improvement ideas exposed by the
panelists and to share their own ideas in view of the drafting of a joint paper. This event is
organized with the support of ASA, which will hold its annual conference at the same location
the following day, 3 February 2017: Shaping Arbitral Proceedings to Best Examine Quantum.
Registration is required and attendance is limited to 50 persons. Applications are accepted on
a first come, first served basis. For further information, please consult the full program of the
SCAI Innovation Conference. We look forward to seeing you there!
Save the Dates!
We also invite you to mark your calenders for the following events:
P'tit Déjeuner de la Médiation - Mediation in the Construction Industry
Geneva, 11 January 2017, at 08:00-09:30. Organized by CSMC (Section Romande), CCIG &
SCAI. Venue: CCIG, 4 Bd du Théâtre, 2nd floor, 1204 Geneva. This mediation breakfast
will focus on mediation in the construction industry. The main speaker will be Mr. Claude
Amar, an IMI and SIMI certified mediator. Mr. Amar has more than 15 years of experience as
a mediator and has mediated several complex cases, including multi-party mediations with
more than eighty parties, in both French and international settings. Mr. Amar will discuss the
key issues and benefits of using mediation in construction disputes. No registration is
required for this event, which will take place in French.
World Litigation Forum 2017 in Dubai
Dubai, 18-19 January 2017, 08:00-17:00 both days. Radisson Blu Hotel, Deira Creek, Dubai.
The theme of the forum will be "Emerging Trends in Global Litigation Environment". Ms.
Valériane Oreamuno, Senior Legal Counsel and Head of the SCAI Secretariat in Geneva, will
be among the speakers to discuss the topic of "Best Practices, Challenges & Solutions in
International Arbitration". Registration is required. The full program is available here.
P'tit Déjeuner de la Médiation - Med/Arb Clauses: New Trends
Geneva, 1 February 2017, at 08:00-09:30. Organized by CSMC (Section Romande), CCIG &
SCAI. Venue: CCIG, 4 Bd du Théâtre, 2nd floor, 1204 Geneva. This mediation breakfast will
discuss new trends and developments in relation to "Med-Arb" clauses. The main speaker will
be Ms. Caroline Ming, SCAI Executive Director. No registration is required for this event,
which will take place in French & English. More details will follow shortly.
ASA Annual Conference 2017 - Shaping Arbitral Proceedings to Best Examine
Quantum
Geneva, 3 February 2017, an all-day event. Venue: Hotel President Wilson, 47 Quai Wilson,
Geneva. This conference will examine the interrelation between substantive legal issues
relating to monetary relief and how arbitral tribunals can structure the proceedings to best
deal with these issues efficiently. Experienced arbitration practitioners will seek in particular
to identify the "typology" of claims so as to organize the arbitration constructively according
to the issues and difficulties raised. The perspectives of arbitrators, counsel and quantum
experts will be explored. Registration is required and hotel rooms at preferential rates are
available for participants at the conference venue, the Hotel President Wilson. The program
and registration form is available here.
The Role of Arbitration in International Contracts
Tehran, February 2017, exact date and time to follow. This all-day seminar is organized by
the Iran-Switzerland Chamber of Commerce, which has invited Ms. Caroline Ming, SCAI
Executive Director, Dr. Martin Burkhardt, Member of the SCAI Arbitration Court and Partner
of Lenz & Staehelin, and Dr. Urs Weber-Stecher, Member of the SCAI Arbitration Court and
Partner of Wenger & Vieli Ltd., to be amongst the speakers. More information will be available
here shortly.
ArbitralWomen Breakfast Meeting and Panel Discussion: Gathering and Weighing
Evidence in Parallel Emergency Arbitration Proceedings
Milan, 31 March 2017, at 7:30-9:00. 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, 20123 Milan, as the arbitration community will be gathered in the city for the IBA 20th
Annual International Arbitration Day Conference. After the conference, dedicated buses
generously sponsored by SCAI will take the participants directly to the IBA Arbitration Day
Conference in time for its first session. Information on the speakers will follow shortly.
~~~
A full list of all our events is available on our website.
Past Events
2016 Roadshow in China
In June this year, SCAI and ASA had a series of very successful presentations in Beijing,
Shanghai and Shenzhen, China, where the teams shared their experiences with the local legal
community. The presentations were organized with the support of the Beijing Arbitration
Commission (BAC), the China International Economic and Trade Arbitration Commission
(CIETAC), the Shanghai International Arbitration Center (SHIAC) and the Shenzhen Court of
International Arbitration (SCIA). The presentations highlighted the similarities between
Swiss and Chinese laws (both civil-law based), as well as the key benefits of arbitration in
Switzerland under the Swiss Rules for international contracts involving Chinese companies.
Commerce between Swiss and Chinese companies has continued to increase since the Free
Trade Agreement between China and Switzerland entered into force in 2014. To date, SCAI
has assisted more than 60 Chinese companies in resolving their disputes in accordance with
the Swiss Rules of International Arbitration, which are available in Chinese on our website, in
addition to a detailed explanatory flyer available in Chinese here. The Swiss Rules were
further discussed with the help of a mock case involving a Chinese and a German company.
To close the road show on a positive note, SCAI and ASA, together with SCIA, hosted an
impressive event with more than 150 participants in Shenzhen, which shows the importance
of the city, as well as the dynamics of SCIA as an institution and of its president: Dr. Liu
Xiaochun. SCIA also has impressive new hearing facilities. The road show resulted in the
signing of a Cooperation Agreement between SCIA and SCAI, under which the two
institutions undertake to cooperate and assist each other in arbitration, mediation and other
forms of ADR, with a view to enhance the development of economic and trade relations
between China and Switzerland.
From left: Dr. Urs Zenhäusern, Partner of Baker & McKenzie; Mr. Marc Veit, Partner of LALIVE; Mr.
Elliot Geisinger, Partner of Schellenberg Wittmer and President of ASA; Dr. Philipp Habegger, Partner
of LALIVE and former President of the SCAI Court; Mr. Alex McLin, Executive Director of ASA; Ms.
Caroline Ming, Executive Director of SCAI; Dr. Bernhard F. Meyer, partner of MME and Vice-President
of ASA; Mr. Frank Spoorenberg, Partner of Tavernier Tschanz and SCAI Court Member; Mr. David Wu,
Partner of Boss & Young in Shanghai; and Mr. Felix Dasser, Partner of Homburger.
The SCIA, SCAI and ASA Presidents & Directors. From left: Mr. CHEN Rui, Secretary of the Council of
SCIA; Ms. Caroline Ming, Executive Director of SCAI; Dr. Philipp Habegger, former President of the
SCAI Court; Dr. Liu Xiaochun, President of SCIA; Ms. DENG Kaixin, foreign counsel at Loo & Partners
LLP; Mr. Elliot Geisinger, President of ASA; and Mr. Alex McLin, Executive Director of ASA.
Dr. Bernhard F. Meyer, partner of MME and Vice-President of ASA, speaks at a presentation with BAC
in Beijing.
2016 Conference in Iran
Earlier this year, SCAI and the Tehran Regional Arbitration Center (TRAC) held a conference
in Tehran on the Swiss Rules of International Arbitration in a Comparative Perspective. The
conference, held at the Iran Chamber of Commerce in Tehran, focused on the comparison
between the Swiss Rules of International Arbitration and the TRAC Rules of Arbitration, as
well as the comparison between international arbitration in Switzerland and Iran more
generally. Speakers included His Excellency Giulio Haas, the Swiss Ambassador to Iran; Dr.
Oveis Rezvanian, Director of TRAC; Dr. Mohsen Mohebi, Secretary General of ACIC Arbitration
Center of Iran Chamber; Prof. Jamal Seifi, Judge at the Iran-United States Claims Tribunal at
the Hague; Dr. Moshkan Mashkour, Partner of Sanglaj International Consultants; and Dr.
Homayoon Arfazadeh (Partner of Python who joined as new Court Member in November
2016). SCAI was represented by Dr. Philipp Habegger, former President of the SCAI
Arbitration Court and Partner of LALIVE, and by SCAI Court Members: Dr. Martin Burkhardt,
partner of Lenz & Staehelin; Mr. Frank Spoorenberg, partner of Tavernier Tschanz; Prof.
Christoph Müller; Dr. Sébastien Besson, partner of Lévy Kaufmann-Kohler; as well as by Mr.
Vincent Subilia, Deputy Head of the Geneva Chamber of Commerce & SCAI Board Member
and Ms. Caroline Ming, SCAI Executive Director & General Counsel.
The comparative analysis revealed that, while there are differences between the two sets of
rules and legal regimes, for instance regarding acceptable reasons to challenge arbitrators,
there are also many similarities. Both Iranian and Swiss laws are civil-law based and the
speakers concluded that Iranian companies and lawyers would not be taken by surprise
if they choose Swiss law as the applicable law for their international contracts, the Swiss
Rules as the applicable institutional rules, and/or if they choose to have the seat of their
arbitration in Switzerland. Moreover, the speakers revealed that Swiss Rules proceedings
involving Iranian parties have never been negatively affected by the trade sanctions on Iran.
Finally, the SCAI team presented the freshly released Farsi version of the Swiss Rules and of
the SCAI detailed explanatory flyer, both of which are now available on the SCAI website,
together with versions in many other languages.
From left: Mr. Vincent Subilia, Mr. Giulio Haas,
Ms. Caroling Ming & Mr. Homayoon Arfazadeh.
Mr. Ali Dehdashti, Associate at Python in Tehran,
and Ms. Caroline Ming, with the new
bilingual version
of
the
Swiss
Rules
of
International Arbitration in Farsi & English.
The panel on International Arbitration in Switzerland and Iran from a Comparative Perspective. From
left: Dr. Sébastian Besson, Prof. Mohsen Mohebbi, Dr. Homayoon Arfazedeh, Prof. Jamal Seifi, and
Prof. Christoph Müller.
Student Visits From Istanbul
The SCAI Secretariat in Geneva received two student visits from Istanbul this year. The first
visit was in March, when 25 students visited from the Dispute Resolution Club (DRC) at
Istanbul University, Faculty of Law. The second visit was this December, when a group
of graduate and post-graduate law students from the Yeditepe University in Istanbul
visited the Geneva office to learn about the Swiss Rules of International Arbitration. The
group was accompanied by Prof. Dr. Nuray EKSI, the chair of the department of private
international law at the University, and Mr. Guven KIZILYEL, Judge at the Regional Court of
Appeals of Instanbul. Mr. Vincent Subilia, Deputy Head of the CCIG & SCAI Board Member,
briefly outlined the rich history and key benefits of arbitration in Switzerland, followed by a
presentation of the Swiss Rules of by Ms. Valériane Oreamuno, head of the SCAI Secretariat
in Geneva. Ms. Caroline Ming, SCAI Executive Director, and Ms. Disa Hjartardottir, trainee
legal counsel at SCAI, joined in the subsequent discussion and answered the students'
questions. The SCAI team wishes the students all the best for their future careers in the field
of international arbitration.
Holiday Office Hours
Please be informed that the offices of the SCAI Secretariat will be closed from 24 December
until 3 January 2017. The reception desk in Geneva will be open in the mornings from 27-30
December to receive mail and courier. The Zurich office will also be open during regular office
hours from 27-30 December to receive e-mails, mail and courier. To ensure the timely
administration of cases during and after the holiday period, we advise parties and counsel to
send notices and urgent communications to us by e-mail to the relevant below address:
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[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
End-of-Year Wishes
At the close of another eventful year, the SCAI team
would like to express its sincerest appreciation for the
trust you have placed in our institution in the past year.
We wish you a warm and happy holiday season and
look forward to working with you in the many years to
come. See you in 2017!
Swiss Chambers' Arbitration Institution
Ms. Disa Hjartardóttir & Ms. Caroline Ming, Executive Director and General Counsel
www.swissarbitration.org
Switzerland, December 2016