NOTE: The information below is given solely on the presumption that the Swiss lex arbitri is applicable, notwithstanding any Arbitration Rules which may also apply and provide further requirements.

It also only addresses international arbitrations with seat in Switzerland and does not address Swiss domestic arbitrations, to which different a different legal framework applies.

I. General questions

(Yes/No /NA)

Additional comments, if any.

I.1

Has the country that you are reporting about adopted the UNCITRAL Model Law?

No

The Swiss lex arbitri is Chapter 12 of its Private International Law Act (PILA). It is not based on the UNICTRAL Model Law.

I.2

Is it required for the award to result from an agreement to arbitrate?

Yes

According to Swiss case law, an award is a judgment rendered on the basis of an arbitration agreement, by a private tribunal which the parties have entrusted with the task of deciding a dispute of financial interest (Art. 177(1) PILA) and having an international character (Art. 176(1) PILS).

This is not an explicit requirement under Art. 189(1) PILA. The latter provides that the award shall be rendered in accordance with the procedure and in the form agreed upon by the parties.

As a result, if the parties have agreed that the arbitration agreement should appear in the award, this should be followed. If they have not, this is not a requirement under Chapter 12 PILA.

I.2.a

if your answer to question I.2 is yes, does the agreement to arbitrate must be transcribed into the award?

No

I.2.b

Does the agreement to arbitrate must be attached to the award?

No

Unless the parties have agreed otherwise (Art. 189(1) PILA), this is not an explicit requirement under Chapter 12 PILA.

I.2.c

If your answer to question I.2.b is yes, would a copy of the agreement to arbitrate be sufficient?

NA

I.2.d

If your answer to question I.2.c is no, is it necessary to attach an original version of the arbitration agreement?

NA

I.3

Must the award resolve a substantive issue, not merely a procedural matter to be considered an arbitral award?

No

According to case law and legal writing, final awards may indeed resolve substantive issues, but may also resolve procedural issues, such as the jurisdiction of the arbitral tribunal.

Yet purely procedural matters, depending on their nature (e.g. relating to document production, bifurcation of proceedings or extension of time limits), should be resolved by simple procedural orders instead of arbitral awards.

Contrary to arbitral awards, procedural orders are not binding on the arbitral tribunal and can be revoked or amended at any time if needed.

On this topic, see e.g. Kaufmann-Kohler/Rigozzi, International Arbitration, Law and Practice in Switzerland (2015), pp. 387-388.

I.3.a

If your answer to question I.3 is yes, should decisions purely on procedural and/or administrative matters be then resolved in form of a procedural order?

NA

I.4

Does the award must comply with certain minimal formal requirements?

Yes

Pursuant to Art. 189(2) PILA, the award must be written, reasoned, dated and signed.

In addition, minimal formal requirements may also be provided following an agreement of the parties, whether explicitly or by reference to arbitration rules.

For instance, Art. 32 of the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution ("Swiss Rules"), if applicable, also provide that the award shall be made in writing, provide reasons, specify the seat of arbitration, the date on which the award is made and be signed.

I.4.a

If your answer to question I.4 is yes, is it required for the award to be an authenticated original award?

No

I.4.b

If your answer to question I.4 is yes, is it required for the award to be in writing?

Yes

Unless the parties have agreed otherwise (Art. 189(1) PILA). The parties may waive their right to a written award and agree that the award shall be rendered orally. Such decision may, however, compromise challenge or enforcement proceedings later on.

I.4.c

If your answer to question I.4 is yes, is it required for the award to be a reasoned instrument?

Yes

Unless the parties have agreed otherwise (Art. 189(1) PILA). Yet renouncing a reasoned award may later on compromise challenge or enforcement proceedings.

It is very rare in practice for parties to waive reasons.

I.4.d

If your answer to question I.4 is yes, is it required for the award to indicate the place of arbitration?

No

While not a requirement under Chapter 12 PILA, it is common for the award to indicate the seat of arbitration, often due to applicable Arbitration Rules. For instance, Art. 32(4) Swiss Rules, if applicable, explicitly requires such indication.

I.4.e

If your answer to question I.4 is yes, is it required for the award to specify the date of the award?

Yes

The indication of the date of the award is a specific requirement under Art. 189(2) PILA. The parties may however decide otherwise pursuant to Art. 189(1) PILA.

Arbitration rules may also provide such requirement (see e.g. Art. 32(4) Swiss Rules).

I.4.f

If your answer to question I.4.e is yes, does the date of the award need to be the date when the last of the arbitrators signed the award?

No

In practice, yes, but determining the date of the award is a matter for the arbitral tribunal to decide.

According to legal scholars, it can either be (i) the date of common signing of the award in the presence of all the arbitrators, (ii) the date of the last signature in case the award is signed following the circulation of the document amongst the arbitrators, (iii) the date of execution of the award, (iv) the date on which the voting took place or (v) the date on which the award was sent to the parties.

I.4.g

If your answer to question I.4.f is no, is the date of the award the same date when the relevant arbitration institution confirmed the award?

NA

I.4.h

If your answer to question I.4.g is no, is the date of the award the same date when the award was sent to the parties?

NA

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