Answer ... (a) Procedure, including evidence?
Neither the PILA nor the CPC includes particular rules governing the arbitral procedure per se. Pursuant to Article 182, paragraph 1 of the PILA, the parties may, directly or by referencing rules of arbitration, determine the arbitration proceeding. If the parties have not done so and/or the referenced rules of arbitration are silent in this regard, the arbitral tribunal must determine the procedure to the extent necessary (Article 182, paragraph 2 of the PILA). Whatever procedure applies, the arbitral tribunal must ensure equal treatment of the parties and the right of the parties to be heard (Article 182, paragraph 3 of the PILA).
As regards the taking of evidence, Article 184, paragraph 1 of the PILA and Article 375 of the CPC stipulate the arbitral tribunal’s obligation to administer the taking of evidence. However, if the taking of evidence or other procedural acts require the assistance of the state courts (eg, due to the fact that arbitral tribunals do not have coercive powers), such participation may be requested from the state court at the seat of the arbitral tribunal either by the arbitral tribunal itself or by a party to the arbitration with the consent of the arbitral tribunal (Article 184, paragraph 2 of the PILA and Article 375, paragraph 2 of the CPC).
(b) Interim relief?
Provided that the parties have not agreed otherwise, and upon the request of a party, arbitral tribunals in Swiss arbitration proceedings have broad discretion with regard to interim measures and the parties can benefit from all interim relief available under Swiss domestic law (Article 183, paragraph 1 of the PILA and Article 374, paragraph 1of the CPC). As per Article 262 of the CPC, on the motion of one party, any interim measure suitable to prevent imminent harm may be ordered. In particular, in the cases provided for by law, the parties to the arbitration may seek:
- an injunction;
- an order to remedy an unlawful situation;
an order directed to a registry authority or to a third party;
- performance in kind; and
- payment of a sum of money.
The party requesting interim relief may also be ordered by the arbitral tribunal to post security in order to secure potential damages suffered by the opposing party (Article 183, paragraph 3 of the PILA).
In contrast to the interim relief ordered by the Swiss state courts, an arbitral tribunal may even grant interim relief that is not recognised under Swiss law. However, the assistance of the state courts in connection with interim relief is of critical importance, as:
- if the respective party does not comply voluntarily, the interim relief must be enforced by the state courts;
- the arbitral tribunal has no competence to issue binding and enforceable orders against third parties which are not party to the arbitration agreement (eg, banks in the case of freezing orders); and
- given that interim measures are generally urgently required, a party will often require such interim relief to be ordered ex parte (ie, without the arbitral tribunal hearing the counterparty). While state courts will grant interim measures ex parte, arbitral tribunals are unlikely to grant interim relief ex parte, unless the institutional rules referenced by the parties expressly provide otherwise (as is the case with the Swiss Rules).
Various institutional arbitration rules (including the Swiss Rules and the International Chamber of Commerce Arbitration Rules) provide for the possibility to call on an emergency arbitrator to grant interim relief even before the arbitral tribunal has been formally established. Equally, state courts can be called on to grant interim relief before the constitution of the arbitral tribunal.
(c) Parties which do not comply with its orders?
In case the party concerned does not voluntarily comply with an interim measure ordered by an arbitral tribunal upon the request of the opposing party, the arbitral tribunal may request the state court to assist in the enforcement of such order (according to Article 183, paragraph 2 of the PILA and Article 374, paragraph 2 of the CPC).
(d) Issuing partial final awards?
Unless the parties to an arbitration proceeding have agreed otherwise, the arbitral tribunal may issue a partial final award limited to certain questions or prayers for relief (Articles 188 and 383 of the CPC).
(e) The remedies it can grant in a final award?
In principle, the PILA and the CPC impose no limits on the final relief that may be awarded by an arbitral tribunal with its seat in Switzerland. However, limitations on the available remedies may be imposed by the arbitration agreement, the law governing the dispute and, in practical terms, the laws of the place(s) where the award will need to be enforced.
If the dispute is governed by Swiss law, the following main categories of ﬁnal remedies exist:
- performance or damages, if speciﬁc performance is no longer possible;
- creation, modiﬁcation or termination of a legal relationship; and
- declaratory relief.
In accordance with Article V, paragraph 2(b) of the New York Convention, the Swiss courts will not enforce remedies that are considered to be contrary to Swiss public policy. In this regard, according to the Swiss Federal Tribunal, treble and punitive damages might infringe Swiss public policy, depending on the particular circumstances of the case.
The payment of interest on principal claims and costs is governed by the applicable substantive law to the matter in dispute (Article 187, paragraph 1 of the PILA). If Swiss law is the applicable substantive law, pre and post-award interest can be included by the arbitral tribunal on both the principal claim and the costs incurred.