Please find herewith the English version of a decision the Federal Tribunal made on April 30, 2012. The opinion reached the website of the Court a few weeks ago.
The opinion is very interesting.
Whilst the names of the Parties
are blanked out in the opinion, several reports (particularly on www.law.com) were published as a consequence of the importance of the case in terms of quantum. As reported on www.law.com, the dispute involved the Swedish company Sonera Holding and the Turkish Cukurova group. Sonera wanted to uphold a 2007 agreement relating to the acquisition of 27% of the Turkcell
cellular phone operator at a price of USD 3.1 billion. The Turkish group had accepted a higher bid from the Russian Alfa group after contracting with Sonera.
In 2005, Sonera initiated arbitration proceedings in Geneva under an ICC clause. The Arbitral tribunal was composed of Pierre Karrer, Christian Rumpf and Michael Schneider as chairman. Ultimately, after two preliminary awards, the arbitrators awarded damages in the amount of USD 932 million.
Whilst the award itself was not appealed to the Federal Tribunal, the Cukurova group filed a request for revision of the award
in December 2010, which is the object of the decision of the Federal Tribunal.
The following are interesting in the opinion:
(i) The Federal Tribunal confirmed its previously well established view that although not made available by PILA, revision of an international arbitral award issued in Switzerland is nonetheless possible when “new facts or evidence” surface after
the award, provided a certain number of conditions are met. (See sections 3.1 and 3.2 of the opinion in this respect).
(ii) If the facts were known to the Petitioner during the arbitration, that makes it impossible to seek revision but the same applies to the facts that the Petitioner should have known by exercising proper attention and diligence. (See section 3.3.1 of the opinion).
(iii) The costs imposed by the Federal Tribunal are in line with Swiss practice but they are a source of concern to many practitioners. As you will see, the Petitioner paid CHF 100’000 (USD 103’000 or € 83’000) to receive a nine pages opinion and it also incurred costs of CHF 200’000 to be paid to its opponent……. This is hardly the way to promote Switzerland as the ideal venue for international arbitrations.
The requirements for “revision” of an international arbitral award being fairly germane to Swiss law, I am also enclosing a copy of a short article I published on the requirements for revision. Those of you suffering from
insomnia may consider perusing it during their next flight across several time zones…
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.
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