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Fwd: [Arbitrage-Adr] Swiss Supreme Court INternational Arbitration Decision of January 4, 2012

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  • Ricardo Urdaneta
    Reenvío una decisión remitida por Charles Poncet a la lista de Arbitrage-ADR sobre la renuncia al derecho de recurrir un laudo y la relación de esta
    Message 1 of 1 , Apr 23, 2012
    Reenvío una decisión remitida por Charles Poncet a la lista de Arbitrage-ADR sobre la renuncia al derecho de recurrir un laudo y la relación de esta renuncia con los derechos fundamentales, en una jurisdicción en la cual la "función social" del Estado se toma muy en serio y la autonomía de la voluntad del individuo también.

    Ricardo Urdaneta

    Begin forwarded message:

    From: "Poncet, Charles" <charles.poncet@...>
    Date: April 23, 2012 4:26:49 AM GMT-05:00
    To: undisclosed-recipients: ;
    Subject: [Arbitrage-Adr] Swiss Supreme Court INternational Arbitration Decision of January 4, 2012
    Reply-To: arbitrage-adr@...

    Dear Friends,


    Please find herewith the English version of an opinion which reached the website of the Federal Tribunal in late January. The judgment is dated January 4, 2012 and it is therefore the first decision issued in 2012.


    The case is quite interesting and deserves reading.


    It involved a Tunisian businessman who entered into certain agreements with some foreign companies. The agreements contained an opting out of appeals worded as follows:


    The decision of the arbitration shall be final and binding and neither Party shall have any right to appeal such decision to any court of law”.


    As you may recall, the same parties had already appealed another award dated March 1st, 2010 and the English translation of the opinion of the Federal Tribunal in the corresponding appeal, dated March 21st, 2011, was sent to you on October 18, 2011. For ease of reference, a copy of the first decision is enclosed and the short introductory note is reproduced hereunder.


    The second dispute involved the compulsory assignment of shares and an ICC arbitral tribunal sitting in Geneva was seized of the dispute. The arbitral tribunal comprised arbitrators Paul Hannon and Nadhir Ben Ammou, with Michael Lee as chairman. The arbitrators essentially ordered the Tunisian businessman to assign his shares in an award of March 9, 2011.


    That award was appealed to the Federal Tribunal and the following are quite interesting in the opinion:


    (i)            The Appellant sought to demonstrate that the wording “any right to appeal” should be interpreted as meaning ordinary appeals only, as opposed to the extraordinary recourse afforded by Swiss law to seek the annulment of an international arbitral award. That argument, based on the opinion of two important commentators, was rejected by the Federal Tribunal. The Court engaged in an interesting exercise in comparative law and found that other possible legal systems in the case, namely New York law, French law and Tunisian law could not be interpreted in that way. The Court left open the issue as to whether or not the interpretation of an opting out agreement should be conducted by applying Swiss law – i.e.  the law of the seat of the arbitration - in any event, an opinion advanced by authoritative legal writing (see section of the opinion in this respect).


    (ii)          In a very interesting argument, the appellant had challenged the very validity of the opting out provision contained in Art. 192 PILA, arguing that renouncing the right to appeal as to essential rights such as the right to be heard or the prohibition of violating public policy, would be inconsistent with Art. 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (EHRC). The Court found that the time had come to decide the issue and it held that Art. 192 (1) PILA is fully consistent with Art. 6 (1) EHRC, because renouncing any appeal is the logical and necessary consequence of party autonomy, which is compatible with Art. 6 (1) EHRC (unless the consent is vitiated of course) (see section 3.2 of the opinion in this respect).


    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


    Introductory note sent on October 18, 2011


    Please find herewith the English translation of an opinion the Swiss Supreme Court dated March 21, 2011 (although it reached the Court’s web site later), which can be of some interest to the international reader.


    A dispute arose between a Tunisian citizen and a French company and the Shareholders’ Agreement they had entered into on September 4, 2010 contained an arbitration clause providing for ICC arbitration in Geneva. A three members’ panel of arbitrators with Tim Portwood as chairman, Paul Friedland and Francesco Marena as arbitrators, issued an award on March 1st, 2010, which the French company sought to rectify and the Arbitral tribunal accordingly issued an Addendum to the award on June 28, 2010, whereupon the Tunisian citizen appealed to the Federal Tribunal.


    The appeal was not admitted on the basis of the opting out clause contained in the Shareholders’ Agreement. As you will see (see section 2.2 of he opinion) the Parties had agreed that the award would be “final and binding” and that “neither Party shall have any right to appeal such decision to any Court of law”.


    In conformity with its previous decisions on this issue, the Court held that whilst the wording did not specifically refer to Art. 190 or 192 PILA – which is not a requirement for a valid opting out clause under Swiss law – the interpretation of the clause at hand manifestly showed that it had been the intent of the Parties to rule out any appeal, thus fulfilling the requirements of previous case law.


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