Answer ... In international arbitration, a valid arbitration agreement is required to fulfil minimum prerequisites of form and substance. In terms of formal requirements, Article 178, paragraph 1 of the Swiss Private International Law Act (PILA) requires the arbitration agreement to be made in writing, including by telegram, telex, fax or any other means of communication allowing the agreement to be evidenced by text. Signatures or exchange of the arbitration agreement is not necessary as long as the parties’ agreement can otherwise be evidenced based on written documents. After its revision, Chapter 12 of the PILA (see question 5) is expected to relax the formal requirements and allow for an arbitration agreement to be validly concluded even if only one of the parties fulfils the formal requirements.
As regards substantive validity requirements, the arbitration agreement must stipulate the parties’ consensus to submit a determined or determinable dispute to an arbitral tribunal to the exclusion of the jurisdiction of the state courts.
The same formal and substantive requirements apply to arbitration agreements in domestic arbitration (Articles 357 and 358 of the Swiss Code of Civil Procedure (CPC)).
Answer ... Article 178, paragraph 3 of the PILA and Article 357, paragraph 2 of the CPC explicitly stipulate the principle of separability of the arbitration agreement. Both provide that the validity of the arbitration agreement cannot be contested on the grounds that the main contract is not valid or that the arbitration agreement concerns a dispute which had not yet arisen.
Answer ... In domestic arbitration, Article 355, paragraph 1 of the CPC provides for the seat of the arbitral tribunal to be determined by the parties or by reference to institutional rules of arbitration, such as the Swiss Rules of International Arbitration of the Chambers of Commerce of Basel, Bern, Geneva, Lausanne, Lugano, Neuchâtel and Zurich (available under www.swissarbitration.org/files/33/Swiss-Rules/SRIA_EN_2017.pdf). If no location is determined by the party agreement or by reference to arbitration rules, the tribunal itself must determine such location. Ultimately, the ordinary court that would have jurisdiction to decide on the matter in the absence of an arbitration agreement shall decide on the location (Article 355, paragraph 2 of the CPC).
Equally, Article 176, paragraph 3 of the PILA provides for a default mechanism stipulating that the seat of the arbitral tribunal is determined by the parties to the arbitration agreement, subsidiarily by the arbitral institution and ultimately, if the seat is designated neither by the parties nor by the arbitration institution, by the arbitral tribunal.
As regards the language of the arbitration proceedings, neither the PILA nor the CPC includes specific provisions governing such matter. As per Article 182, paragraph 1 of the PILA and Article 373, paragraph 1 of the CPC, it is up to the parties to decide on the language of the arbitration. Should the parties fail to agree on a language to be used in the arbitral proceedings, it is for the tribunal to decide on the language of the proceedings (see Article 182, paragraph 2 of the PILA and Article 373, paragraph 2 of the CPC).
In institutional arbitration under the Swiss Rules of International Arbitration, Article 17 determines that unless the parties have agreed on the language of the proceeding, the arbitral tribunal shall do so taking into account all relevant circumstances.