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Results: 4 Answers
International Arbitration
7.
Consolidation and third parties
7.1
Does the law in your jurisdiction permit consolidation of separate arbitrations into a single arbitration proceeding? Are there any conditions which apply to consolidation?
 
Switzerland
In domestic arbitration, Article 376, paragraph 2 of the Swiss Code of Civil Procedure (CPC) expressly provides for claims between the same parties to be joined in the same proceeding. Such consolidation is permissible if the claims are factually connected, as well as subject to corresponding arbitration agreements. In contrast, Chapter 12 of the Swiss Private International Law Act (PILA) is silent in this regard.

Article 4, paragraph 1 of the Swiss Rules of International Arbitration provides for the consolidation of separate arbitral proceedings. Prior to deciding on the consolidation, the arbitral tribunal must consult with the parties and any confirmed arbitrator, taking into account the relevant circumstances of the arbitral proceeding in question. Consolidation is equally possible if the parties to the separate arbitral proceedings are not identical.

For more information about this answer please contact: Anja Vogt from Niederer Kraft Frey AG
7.2
Does the law in your jurisdiction permit the joinder of additional parties to an arbitration which has already commenced?
 
Switzerland
In domestic arbitration, joinder or intervention of additional parties to an already commenced arbitration is permitted and expressly provided for in Article 376, paragraph 3 of the CPC on condition that there is an identical arbitration agreement between the third party and the parties to the arbitration proceeding, and subject to the consent of the arbitral tribunal. In contrast, Chapter 12 of the PILA includes no provisions on the joinder of third parties to an arbitration proceeding.

As per Article 4, paragraph 1 of the Swiss Rules, the arbitral tribunal must decide on a request of a third party to participate in an arbitration proceeding already pending under the Swiss Rules, after consulting with the parties, including the party to be joined, and taking into account all relevant circumstances.

For more information about this answer please contact: Anja Vogt from Niederer Kraft Frey AG
7.3
Does an arbitration agreement bind assignees or other third parties?
 
Switzerland
According to settled case law of the Swiss Federal Tribunal, an extension of the arbitration agreement to non-signatory third parties may be possible in the following scenarios, which are assessed on a case-by-case basis:

  • A non-signatory third-party has clearly expressed its intention to be bound by the arbitration agreement through conduct. In particular, interference by such third party in the negotiations or performance of a contract containing an arbitration clause may lead to the applicability of such arbitration clause to such party.
  • Non-signatory third party beneficiaries of agreements which contain an arbitration clause may invoke such arbitration clause when raising claims under the pertinent agreement, provided that express language in the arbitration clause does not determine otherwise.
  • In case of the assignment of agreements with an arbitration clause, the arbitration clause is also generally deemed to have been assigned to the assignee.
  • Under exceptional circumstances, the separate corporate forms of companies may be disregarded, such as in case of fraud or blatant abuse of rights. As per the alter ego doctrine or piercing of the corporate veil doctrine, a non-signatory party that exerts complete and exhaustive control over another party and has misused such control to such extent that it may be appropriate to disregard the separate legal forms of the two parties and treat them as one entity may be bound by an arbitration agreement formally signed by the controlled entity.
  • The group of companies doctrine would provide for the application of an arbitration agreement to a parent company or other companies in the same group as the subsidiary which is a signatory to the arbitration agreement. However, this doctrine is a matter of debate in Switzerland and is not currently recognised.
For more information about this answer please contact: Anja Vogt from Niederer Kraft Frey AG