Comparative Guides

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

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
International Arbitration
The role of the court during an arbitration
Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?

Answer ... At least with regard to arbitral tribunals seated in Switzerland, Swiss court practice has established principles favouring arbitration over state court litigation. As per the ‘negative effect’ of competence-competence, if the jurisdiction of the state court seized is contested based on the existence of an arbitration agreement, the state court should refer the matter for review to the arbitral tribunal stipulated in the arbitration agreement, unless the arbitration agreement on its face appears to be invalid and incapable of being performed by the parties (Article 186, paragraph 1bis of the Private International Law Act (PILA), “unless there are serious reasons to stay the proceedings”). Thus, if an arbitration agreement provides for an arbitral tribunal seated in Switzerland, a state court seized by a party will refrain from reviewing whether the alleged arbitration agreement is valid and covers the dispute, and will refer the matter to arbitration.

For more information about this answer please contact: Anja Vogt from Niederer Kraft Frey AG
Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?

Answer ... Swiss law on international and domestic arbitration provides for significant restrictions on interventions by state courts, as well as on the grounds to challenge an award in the state court (see also question 41).

Both Chapter 12 of the PILA and the Third Title of the Swiss Code of Civil Procedure (CPC) provide limited grounds for seeking the assistance of the state court at the seat of the arbitral tribunal, such as with regard to the appointment, removal or replacement of an arbitrator and assistance with taking evidence or enforcing interim measures. Such state court intervention is permissible only upon the request of a party to the arbitration proceeding (or in domestic arbitration, upon the request of the arbitral tribunal with regard to the enforcement of interim measures – see Article 374, paragraph 2 of the CPC).

As regards the granting of interim relief, in both international and domestic arbitration, the parties retain the possibility to apply to the state court for interim measures (Article 374, paragraph 1 of the CPC and Article 183, paragraph 1 of the PILA). In this regard, most scholars recognise that the state courts and the arbitral tribunal have parallel jurisdiction.

For more information about this answer please contact: Anja Vogt from Niederer Kraft Frey AG
Can the parties exclude the court's powers by agreement?

Answer ... The provisions on assistance by the state courts at the seat of the arbitral tribunal (Article 185 of the PILA and Article 356 of the CPC) are mandatory and may not be excluded by agreement of the parties.

If none of the parties to an arbitration agreement is domiciled or resident in Switzerland, or has a place of business in Switzerland, Article 192, paragraph 1 of the PILA provides for the possibility to exclude applications to set aside awards.

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