Archives for General

Seminar: Singapore Convention on International Conciliation Agreements Arising from Arbitration

  • Franche-Comté University Law Research Center, CRJFC
  • Higher Management and Planning Institute, ISGP
  • Algerian Institute of Finance and Management
  • Energy Disputes Arbitration Center, EDAC
  • Mauritania International Mediation and Arbitration Center
  • Ouagadougou Mediation and Conciliation Arbitration Center

An international webinar will be held with the participation of the above institutions on 6 January  2021, from 2:00 to 6:00 PM (Paris time).

Topic of the Seminar:

Singapore Convention on International Conciliation Agreements Arising from Arbitartion: A New York Convention on The Recognition and Enforcement of Friendly Agreements?

The seminar will be held under the scientific direction of Professor Filali OSMAN and the support of the Hanns Seidel Foundation in the Maghreb and the United Nations International Business Law Commission.

Read more

Reform of Swiss Arbitration Law – Key Changes and Developments

On 19 June 2020, the Swiss Parliament approved a long-awaited revision of Swiss Arbitration Law, expected to enter into force in early 2021. This is a welcome development, preserving and further strengthening Switzerland’s position as one of the most attractive venues for hosting international arbitrations, both ad hoc and institutional.

International Arbitration in Switzerland is governed by  Chapter 12 of the Federal Statute on Private International Law (commonly known as “PILA”),  more specifically, Articles 176-194. The current version of the Swiss Arbitration Law came into force in 1989, over 30 years ago, and has not been subject to major amendments since this point in time. The reason for this is simple: Swiss Arbitration Law has proven to be a significant success. As one of the “forerunners” of modern arbitration laws worldwide, with respect and emphasis on the parties’ autonomy, Swiss Arbitration Law helped established Switzerland as a highly-attractive venue for arbitrating international disputes.

The Reform of Swiss Arbitration Law

The initiative for reform of Chapter 12 of PILA came from the Swiss Government in 2017. On 11 January 2017, the Swiss Government published  a draft bill with proposed amendments. The aim of the reform was to modernize Swiss Arbitration Law and to bring it in line with the settled jurisprudence of the Swiss Federal Supreme Court and with the most recent developments in international arbitration. After the draft bill was published, several rounds of public consultations were held with different arbitration institutions, law associations and law faculties. An updated draft bill was released in October 2018. The draft bill was considered by the Swiss Parliament in March 2020 and approved by the Swiss Parliament on 19 June 2020. The amendments are anticipated to enter into force in early 2021.

Scope of Application: International Arbitration

Chapter 12 of PILA applies to international arbitration. Pursuant to Article 176(1), arbitration is considered international if one of the parties to an arbitration agreement, at the time of its signature, has its domicile outside of Switzerland. Under the current Swiss Arbitration Law, there was some ambiguity as to the timing which determines a party’s domicile, and whether it was at the time of the conclusion of the arbitration agreement or at the time of initiation of an arbitration. This confusion stemmed from the case law of the Swiss Federal Court. This issue has now been clarified, and revised Article 176 of PILA makes it clear that the decisive moment in determining a party’s domicile is the moment of the conclusion of the arbitration agreement.

Domestic arbitration, on the other hand, is governed by the Swiss Code of Civil Procedure. An interesting feature, however, is that pursuant to Article 176(2), parties may decide to opt out of Swiss International Arbitration and chose domestic arbitration instead, thereby excluding application of Chapter 12. Parties in domestic arbitration may also opt in to Chapter 12 which applies to international arbitration but this, however, has to be explicitly stated in the arbitration agreement at the time of its signature.

Procedure for Appointment and Replacement of the Arbitrators under Swiss Arbitration Law

Other revisions and clarifications of the Swiss Arbitration Law are related to the procedure for the appointment and replacement of arbitrators. Pursuant to Article 179(1) of PILA, arbitrators are appointed and replaced in accordance with the procedures set out in the arbitration agreement. However, where the parties have not specified the procedure for their appointment, Swiss State courts have jurisdiction to appoint the arbitrators. The recent updates clarifies a question that posed certain problems in practice, that if the parties have not explicitly determined the place of arbitration or have stated simply “arbitration in Switzerland“, the Swiss court to which the issue has been first raised has authority to appoint the arbitral tribunal. The revised bill further clarifies that in case of multiparty arbitrations, where the parties have failed to appoint an arbitrator, the appointment can also be made by the Swiss State court, and it contains provisions intended to minimise delaying tactics in ad hoc arbitrations (“A la demande d’une partie, le juge prend les mesures nécessaires à la constitution du tribunal arbitral si les parties ou les arbitres ne s’acquittent pas de leurs obligations dans les 30 jours à compter de celui où ils ont été
appelés à le faire.”)

New Written Form Requirements for Arbitration Agreement

Pursuant to Article 178 of PILA, arbitration agreements are deemed valid if made in writing, by telegram, telex, fax or any other means of communication which permits it to be evidenced by a text. The revised text introduced by the new bill now provides wording that clarifies that other forms of modern communication may also be used to prove the existence of an arbitration agreement.

Another change with respect to the form of an arbitration agreement is that the new bill introduces the possibility of arbitration agreements being made in unilateral legal instruments, for example, trusts, deeds, wills or articles of associations and bylaws (“Les dispositions de la présente partie s’appliquent par analogie aux clauses d’arbitrage qui sont prévues dans des actes juridiques unilatéraux ou des statuts“).

Challenges Against Arbitral Awards

Challenges against arbitral awards are decided directly by the Swiss Federal Supreme Court. An award can be set aside on very limited grounds as provided in Article 190 of PILA, which is in line with the grounds provided in the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards.

The new bill clarifies that an award may be challenged regardless of the amount in dispute. Moreover, the revised law codifies the remedies available to parties which, in addition to the right to request annulment, also includes a party’s right, in very limited cases, to request the reopening of the proceedings (a so-called “Revision”). As provided in the newly-introduced Article 190(a), an application for revision is allowed in one of the following, limited circumstances:

  1. If relevant or material factors or evidence have been discovered after the arbitration proceedings have been concluded;
  2. If criminal investigation shows the award was tainted by illegality;
  • If circumstances were discovered after the arbitration proceedings have been concluded, which raise doubts as to an arbitrator’s independence and/or impartiality.

Pursuant to Article 191, a foreign party may waive its right to file an application for revision, however, no waiver is possible for the ground that an award has been influenced by a criminal offense.

Submissions to Swiss Courts in English

Another interesting development, as English is the lingua franca of international commerce and trade, is that the new bill provides that applications for the setting aside of awards may now be submitted to Swiss Federal Court in English (“Les mémoires peuvent être rédigés en anglais“). Previously, all submissions to the Swiss Federal Court had to be made in one of the official languages, German, French, Italian or Romansh (spoken mainly in the southeastern Swiss canton of Grisons).

This happens to be one of the most controversial changes which, considering the short 30-day deadline for the submission of an application for setting aside, may be beneficial for foreign parties and reduce the cost and time of unnecessary translations. The decision of the Swiss Federal Court has to be made in one of the official languages, however. The precise implications of this revision will be seen in practice.

Read more

Updates to the LCIA Arbitration Rules and the LCIA Mediation Rules (2020)

The LCIA is pleased to release an update to the LCIA Arbitration Rules and LCIA Mediation Rules to take effect on 1 October 2020. This update was initiated by immediate past President Judith Gill QC, and finalised by President Paula Hodges QC, supported by input from a large number of users, and with the invaluable support of a working group including both LCIA staff and external users.

The updates adopted by the LCIA Court and the LCIA Board of Directors aim to make the arbitral and mediation processes even more streamlined and clear for arbitrators, mediators and parties alike.

The Rules updates were being finalised as the Covid-19 pandemic took hold. While the pandemic did not necessitate any change of direction or focus, it allowed the LCIA to address explicitly some changes in recent good practice, notably the increased use of virtual hearings and the primacy of electronic communication across the board. Similarly, although the Mediation Rules were going to be updated imminently, the timing of the update caters to the increased interest of users in mediation in the present environment.

Notable amendments in the Rules include:

  • Additional tools allowing arbitrators to expedite proceedings, including by introducing an explicit reference to the possibility of early dismissal determination;
  • refinement and expansion of the provisions accommodating the use of virtual hearings, also supporting arbitrations taking place in the new normal;
  • confirming the primacy of electronic communication with the LCIA and in the arbitration, as well as confirming the facilitation of electronically signed awards;
  • inclusion of explicit provisions addressing the role of tribunal secretaries;
  • broadening of LCIA Court and Tribunal power to order consolidation and concurrent conduct of arbitrations;
  • explicit consideration of data protection and regulatory issues.

In addition, this Rules update provides an opportunity for re-evaluating the maximum hourly rate for arbitrators and mediators as well as the hourly rates for the LCIA Secretariat. The £450 maximum hourly rate will be increased to £500, better to reflect the demands of users in certain cases involving complex and significant disputes.

A series of events will be organised to launch the LCIA Arbitration Rules Update (2020) to the international legal community, which will be announced on the LCIA website, as well as via LinkedIn and Twitter.

Updates to the guidance notes, translations of the Rules, and other related resources will be available from the LCIA website in due course.
The updated Rules and Schedules are available to view via the following links:

The LCIA Arbitration Rules Update (2020)

The LCIA Arbitration Rules – Schedule of Costs (2020)

The LCIA Mediation Rules Update (2020)

The LCIA Mediation Rules – Schedule of Mediation Costs (2020)

Read more