Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

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4. Results: Answers
International Arbitration
Arbitrability and restrictions on arbitration
How is it determined whether a dispute is arbitrable in your jurisdiction?

Answer ... In international arbitration, Article 177, paragraph 1 of the Swiss Private International Law Act (PILA) and Swiss Federal Tribunal case law provide for a broad definition of (objective) arbitrability. Any dispute of economic interest – that is, any claim that ultimately pursues an economic purpose – may be subject to arbitration. Thus, monetary claims in family and inheritance law, and monetary claims relating to intellectual property, competition and antitrust law, are deemed arbitrable in Switzerland. As a consequence, in international arbitration, arbitrability is denied, for instance, for non-monetary matters concerning family status (eg, marriage, separation, divorce, matrimony, paternity, adoption), some matters relating to insolvency law (eg, opening of bankruptcy proceeding, arrest) and succession matters.

As regards domestic arbitration, the definition of ‘arbitrability’ is more restrictive. Article 354 of the Swiss Code of Civil Procedure (CPC) stipulates that disputes in a domestic context are solely arbitrable if the parties are free to dispose of the rights and duties in question – that is, if a dispute can be settled in a legally binding manner by an out-of-court settlement or acceptance of a claim in a state court proceeding. In practical terms, this restriction means that, for instance, employment law-related disputes are not deemed arbitrable in principle (even though they are deemed arbitrable in Swiss international arbitration).

In addition, in terms of subjective arbitrability, the parties to the arbitration agreement must have the (legal) capacity to be a party as well as to conduct arbitration proceedings.

For more information about this answer please contact: Anja Vogt from Niederer Kraft Frey AG
Are there any restrictions on the choice of seat of arbitration for certain disputes?

Answer ... In both international and domestic arbitration, the geographical scopes of the PILA and the CPC require the seat of the arbitration to be in Switzerland (Article 176, paragraph 1 of the PILA and Article 353, paragraph 1 of the CPC).

In both international and domestic arbitration, it is for the parties to a given dispute to decide on the seat. No restrictions are imposed on the choice of seat under Swiss law (noting that insofar as a seat outside Switzerland is chosen, Swiss arbitration law does not apply). Thus, there is neither a requirement for a connection between the dispute and the seat of arbitration nor a requirement that one party be a national of or domiciled in the place chosen as the seat. However, since not all subject matter is suitable for arbitration, at least indirect restrictions apply to the choice of seat. Any arbitration agreement that provides for arbitration in a restricted matter must be considered void or at least partly void, making any choice of seat redundant.

In addition, pursuant to Article 355 of the CPC and also in Swiss international arbitration, unless the parties have agreed otherwise, the arbitral tribunal may hold hearings, take evidence and deliberate at any location.

For more information about this answer please contact: Anja Vogt from Niederer Kraft Frey AG
International Arbitration