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Contrary to judgments, arbitral awards are final in the sense that they are not subject to appeals. This chapter examines the very limited remedy of annulment or setting aside of the award in accordance with Article 190(2) PILA, emphasizing that the annulment grounds in that provision are essentially concerned with the manner in which justice was rendered, as opposed to the content of the decision. The chapter also covers all aspects of the annulment procedure before the Swiss Supreme Court, from the admissibility of the action to cost allocation. In that context, it addresses the possibility for parties not seated in Switzerland to waive their right to seek the annulment of the award (Article 192(1) PILA). The chapter further discusses the revision of the award, and, in its final section, the recognition and enforcement of foreign arbitral awards by the Swiss courts in accordance with the New York Convention.

This chapter examines the constitution of the arbitral tribunal, including the parties’ participation in that process, which is often seen as one of the advantages of arbitration over litigation. Even if the parties influence the composition of the tribunal, the office of the arbitrators is a judicial one, as their award will be considered the equivalent of a court judgment. Accordingly, the chapter discusses the fundamental requirements of independence and impartiality of arbitrators, as well as the rules governing their challenge and replacement. On this topic, the chapter considers in particular the relevance of the recently revised IBA Guidelines on Conflicts of Interest. The differences in the procedural regimes between ad hoc and institutional arbitrations are addressed throughout the analysis. The contractual dimension of the arbitrators’ relationship with the parties is addressed in the chapter’s last section, devoted to the so-called receptum arbitri.

This chapter discusses the notion, content, and effects of the arbitration agreement, defined as an agreement to submit to arbitration all or certain disputes that have arisen or may arise between the parties in respect of a defined legal relationship, whether contractual or not, which may be in the form of a clause in a contract or of a separate ‘submission agreement’ (compromis arbitral). The chapter examines the principle of separability and the requirements for the validity of the arbitration agreement, namely arbitrability, written form, and substantive validity, including the agreement’s formation, interpretation, extension to third parties, and termination. Finally, it discusses to what extent defects of the arbitration agreement can be remedied by conduct.

This introductory chapter analyses the concept of arbitration, distinguishing it from other alternative dispute resolution (ADR) methods, in particular mediation, conciliation, and expert determination. Having traced the historical roots and evolution of international arbitration, it then discusses the advantages and drawbacks of choosing to settle disputes by way of arbitration. The chapter further presents the main sources of arbitration law, from national laws and international treaties – in particular the New York Convention – over arbitration rules, soft law, jurisprudence, and scholarly writings. It then considers the role of Switzerland as a place of arbitration, discussing its long-standing dispute-settlement tradition and the arbitration-related bodies and institutions operating in the country. Finally, as an introduction to the next Chapters, the discussion briefly sets out the situations in which the arbitration process can come into contact with the courts.

Building upon the discussion on the validity and effects of arbitration agreements in chapter 3, this chapter examines the rules governing the jurisdiction of arbitral tribunals. It addresses a number of questions arising from the arbitral tribunal’s and the courts’ review of arbitral jurisdiction, from the implications of the principle of competence-competence to jurisdictional objections and the effects of parallel proceedings. Special attention is given to topics such as the so-called negative effect of competence-competence, the arbitration-specific lis pendens rule established in Article 186(1) bis PILA and the res judicata effect of prior arbitral or judicial decisions on jurisdiction. The chapter’s final section discusses anti-suit and anti-arbitration injunctions.

Before describing the main features of an award, this chapter discusses the determination of the law governing the merits of the dispute or lex causae. It considers the role of party autonomy in this respect and examines the scope and content of the potentially applicable substantive laws that may be chosen by the parties or selected by arbitral tribunals, from national laws to transnational rules of law (the so-called lex mercatoria) over trade usages and ex aequo et bono principles. It also discusses the relevance and impact of international public policy and overriding or internationally mandatory rules. Turning to the award, the last part of the chapter sets out a typology of arbitral decisions, addresses the required form and content of awards and discusses the deliberation process as well as issues such as institutional scrutiny, dissenting opinions, and the notification, publication, and effects of the award.

This second chapter starts by clarifying the concept of ‘law of the arbitration’ or lex arbitri, underscoring that any arbitration needs to be governed by a national law of arbitration. The chapter then examines how to determine the national arbitration law that governs a specific arbitration by analysing the scope of application of the national arbitration law, especially Chapter 12 of the Private International Law Act (PILA), and distinguishing between international and domestic arbitrations. In this context, the chapter addresses the legal significance the seat of the arbitration, the practical considerations that should guide the selection of the seat, as well as the possibility for parties to arbitrations seated in Switzerland to opt in or out of the (international or domestic) regime governing the arbitration. Finally, the chapter describes the main features of national arbitration laws using Chapter 12 PILA as an example.

This chapter considers how arbitral proceedings unfold once the tribunal is constituted (as discussed in chapter 4), up until the deliberation phase (which is addressed in chapter 7). It starts by identifying the rules that govern the conduct of arbitral proceedings and then examines the interaction between those rules, before describing, by reference to current best practices, the different steps in a ‘standard’ international arbitration. The discussion illustrates, in particular, the articulation between fundamental principles of due process and the parties’ autonomy and arbitrators’ powers in organizing arbitral proceedings. The presentation of arbitral practice is supplemented by a number of model procedural documents: terms of reference for ICC arbitrations, terms of appointment, and a set of specific procedural rules suitable for both institutional and ad hoc arbitration, as well as a standard letter on the appointment of an arbitral secretary. The chapter’s final section is devoted to provisional measures.