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Fw: [Arbitrage-Adr] Swiss Supreme Court International Arbitration Decision of August 3, 2010

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    Apreciados amigos: A la presente acompaño el correo de Charles Poncet sobre un fallo del 3 de agosto de 2010 del Tribunal Federal Suizo, en el cual dicho
    Message 1 of 1 , Jan 11, 2011

    Apreciados amigos:

    A la presente acompaño el correo de Charles Poncet sobre un fallo del 3 de agosto de 2010 del Tribunal Federal Suizo, en el cual dicho Tribunal niega un recurso en el que se había solicitado la anulación de un laudo por violación del derecho de ser oido, en la medida en que el Tribunal se había pronunciado con base en argumentos que no habían sido planteados por las partes ni ellas habían podido considerar . El Tribunal niega el recurso porque no se cumple esta condición.


    Juan Pablo Cárdenas

    ----- Forwarded Message ----
    From: "Poncet, Charles" <charles.poncet@...>
    Sent: Tue, January 11, 2011 11:45:58 AM
    Subject: [Arbitrage-Adr] Swiss Supreme Court International Arbitration Decision of August 3, 2010

    Dear Friends,


    First of all, let me wish a very happy and prosperous year 2011 to all my readers. We are doing pretty well in terms of timeliness as you are still to receive only twelve opinions issued in 2010. Eight are already translated and simply need to be corrected or provided with an accompanying note. They will be sent on a weekly basis and the last four 2010 decisions need to be translated.


    This being said, the enclosed judgment of the Federal Tribunal, dated August 3, 2010 although it was posted on the website of the Court several weeks later, involved a 2001 Business Consultancy Agreement between a Belgian and a Spanish company. The main purpose of the Agreement was for one of the companies to assist the other in a bid for a liquefied gas storage facility. The Belgian company subsequently assigned its activities related to natural gas to another company, based in Germany. The bid was unsuccessful. In 2003 a new Business Consultancy Agreement was entered into between the German company and a Dutch company. A dispute ensued in relation to the commission due under the 2001 Agreement and arbitration proceedings were initiated in Switzerland in 2005.


    The ICC appointed Rocco Bonzanigo as sole arbitrator. Issues of locus standi were decided in a partial award of September 5, 2007 and the final award was issued on March 15, 2010.


    The Belgian company appealed to the Federal Tribunal and the following are interesting in the opinion:


    (i)    The case involves (again!) a claim that the arbitral tribunal would have violated the right to be heard by deciding the case on the basis of legal reasons totally unpredictable for the parties and that had never been argued. The leading case in this field is the Tvornica case (BGE 130 III 35 (2003)), in which I represented the Appellant. The arbitral tribunal (with one arbitrator dissenting) had overextended the rule of jura novit curia and the Federal Tribunal found that the Appellant’s right to be heard had been violated because the legal reasons relied upon by the majority of the arbitral tribunal were totally unforeseen and had never been discussed in the proceedings. 


    (ii)  Since the Tvornica decision, countless appellants have tried to make the same argument without success and this is also what happened here. The Federal Tribunal repeats that as a matter of principle, the parties do not have to be heard specifically on the impact to be given to the rules of law. (see section 3.1 of the opinion in this respect)


    (iii) In the case at hand, the issue was concealment and somewhat acrobatically perhaps, the Federal Tribunal reached the conclusion that whilst not anticipated, the solution found by the arbitrator was not unexpected to the point that it would meet the Tvornica requirements. (see section 3.3 of the opinion in this respect)


    (iv) Other decisions went the same way (see for instance ATF 4A_ 240/2009 of December 16, 2009 which was sent to you on September 27, 2010) but the Federal Tribunal never found any other circumstances that would justify a decision similar to what the Court did in Tvornica. This probably means that in reality, the Court feels that it may not have been a good idea to decide the Tvornica case the way it did. In other words, I would be surprised if the Federal Tribunal annuls another international arbitral award because the arbitral tribunal resorted to legal reasons that had never been argued or were totally unforeseen by the parties. Of course, this may also be related to the fact that arbitrators do read the opinions of the Federal Tribunal and a “surprise” such as the one contained in the Tvornica award is much less likely nowadays…


    As usual, feel free to use the translation as much as you wish to. Others can be downloaded from our website at www.praetor.ch, which now includes a possibility to register in order to receive the next translations. Of course, those of you who receive this message need not register as you are already on the list.



    Best regards


    Charles PONCET


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