Answer ... As per Article 186, paragraph 2 of the Swiss Private International Law Act (PILA) and Article 359, paragraph 2 of the Swiss Code of Civil Procedure (CPC), any plea of lack of jurisdiction of the arbitral tribunal must be raised prior to any defence on the merits. In other words, such objection to the jurisdiction of the arbitral tribunal must be raised as early as possible in the proceeding; otherwise, the jurisdictional challenge will be barred due to an assumed tacit agreement to the arbitral tribunal’s jurisdiction.
Answer ... As per the principle of competence-competence applicable in both Swiss international and domestic arbitration – which provides that it is for the arbitral tribunal (in the first instance) to decide on its jurisdiction – the arbitral tribunal will rule on its own jurisdiction (Article 186, paragraph 1 of the PILA and Article 359, paragraph 1 of the CPC). This applies even if an action on the same matter between the same parties is already pending before a state court or another tribunal, unless there are serious reasons to stay the proceeding (so-called ‘negative effect’ of competence-competence, Article 186, paragraph 1bis of the PILA).
Answer ... According to Article 186, paragraph 1of the PILA and Article 359, paragraph 1 of the CPC, which are both mandatory provisions, it is for the arbitral tribunal to decide on its jurisdiction. While such decision of the arbitral tribunal, in both international and domestic arbitration, may be appealed before the Swiss Federal Tribunal (Article 190, paragraph 2(b) of the PILA and Article 393(b) of the CPC), an action brought before a state court for a ruling on the jurisdiction of the tribunal (or the absence thereof) is not admissible in Switzerland.
As regards the ‘negative effect’ of competence-competence – that is, that an arbitral tribunal with its seat in Switzerland may equally decide on its jurisdiction, even if an action involving the same subject matter is already pending between the same parties before a state court –see questions 14 and 32.