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In its decision 4A_16/2023 of 8 November 2023 the Swiss Federal Tribunal tackled a controversial question: whether a claimant who has seized a wrong court gets a second chance to introduce its claim in the right (competent) court. Art. 63(1) and 64(2) of the Swiss Civil Procedure Code ("CPC") indeed provide for a grace period to seize the proper court. But what happens if in the meantime the claim became time barred? In the case at hand, a state court had dismissed a lawsuit for lack of jurisdiction as the parties had agreed to settle disputes by arbitration. By the time the claimant initiated arbitration, the claim was time barred. The claimant argued that this was irrelevant since the first action had interrupted the time bar in light given Art. 63(1) and 64(2) CPC. The sole arbitrator disagreed and considered the claim inadmissible. The leaseholder then requested the Swiss Federal Supreme Court to set the award aside. The Court found that the arbitrator had wrongly disregarded Art. 63(1) and 64(2) CPC which form part of Swiss substantive law. The Court nevertheless dismissed the challenge because (domestic) arbitral awards can only be annulled in case of a qualified error (manifest disregard). [ABSTRACT FROM AUTHOR]

As arbitration laws and rules lack detailed provisions on the conduct of the proceedings, it has become standard practice to establish case-specific procedural rules at the outset of an arbitration in a so-called Procedural Order No. 1 ("PO1"). However, views diverge as to how one should go about when drafting PO1s, and especially how detail-oriented and comprehensive they should be. Furthermore, over the past few years, arbitrators have faced increasing criticism for relying too much on model PO1 templates instead of focusing on continuous case management that takes maximum advantage of the flexibility inherent in international arbitration. This article summarizes the recent debate about the role of PO1 in case management. Additionally, it discusses some of the most fundamental issues that arbitral tribunals and parties should consider when preparing PO1s. The author posits that despite contrary arguments by some leading practitioners, a skillfully crafted and sufficiently comprehensive PO1 remains the cornerstone of any well-run arbitration. [ABSTRACT FROM AUTHOR]

With the introduction in 2021 of Article 190a of the Private International Law Act (PILA) and the simultaneous amendment of Article 191 PILA, which now refers to a new Article 119a of the Federal Supreme Court Act, the extraordinary remedy of “revision” of decisions rendered in international arbitrations seated in Switzerland has been put on a statutory footing. Before that, revision was recognised and governed only by the case law of the Swiss Supreme Court. There are many procedural aspects to revision proceedings that are not specifically stipulated in the law but derive from the practice of the Supreme Court. Other procedural aspects are governed by provisions of the Federal Supreme Court Act which may not at first glance appear applicable to revision proceedings against arbitral awards but which the Court nonetheless applies to such proceedings. Finally, practices developed by the Supreme Court before the entry into force of the new statutory regime to a large extent continue to apply under the new regime. The present article summarizes these procedural aspects of revision proceedings and is helpful to those handling revision proceedings before the Swiss Supreme Court. [ABSTRACT FROM AUTHOR]

While it is controversial what principles an arbitral tribunal should apply when making a cost award under normal circumstances, it is widely accepted that an arbitral tribunal may take the parties' procedural conduct into account and the most commonly applied institutional rules all confer broad discretion on the arbitral tribunal to consider procedural misconduct when deciding about costs. Procedural misconduct can occur in different forms and facets. The most regularly reported forms include frivolous or inflated claims, meritless requests, unsolicited submissions, dilatory or obstructive behavior and failure to produce documents. Since misconduct contravenes the duty to arbitrate in good faith and the goal to conduct the arbitration in a cost and time efficient manner, procedural misconduct of a certain gravity should not go unnoticed. Arbitrators should under appropriate circumstances indemnify the opponent and/or sanction the party engaged in misconduct for wasteful behavior by rendering an adverse cost award. They can do so either in an interim or partial award or at the end of the proceedings. [ABSTRACT FROM AUTHOR]

For years parties to international arbitrations have used the discovery mechanism of § 1782 to seek the U.S. courts' assistance in obtaining evidence from persons in the United States. Over time, a circuit split developed on whether § 1782 extended to private arbitral tribunals. This summer, the United States Supreme Court resolved the circuit split, holding that the scope of § 1782 did not encompass private international arbitration, but leaving the door open for arbitral tribunals imbued with some level of governmental authority. After providing a summary of the Supreme Court's decision, the article focuses on the implications of this new precedent and its impact on participants to arbitration proceedings seated outside the U.S. with a focus on arbitrations seated in Switzerland. [ABSTRACT FROM AUTHOR]

The chosen arbitral seat is one of the most important features of an arbitration clause, and dozens of jurisdictions around the world are competing to be the seat of choice for international arbitrations. The Chartered Institute of Arbitrators (CIArb) has provided parties and legislators a loose framework to determine what is (and what is not) a "safe" arbitral seat, referencing factors that concern the domestic legal framework for arbitration, the competency of the courts and matter of party convenience. Italy has never been able to position itself as a preferred arbitral seat for various reasons, but this is starting to change. In late 2021 Italy modernized its arbitration law, reforming key elements of its Code of Civil Procedure that govern domestic and international arbitrations. While these efforts bring Italy in line with other, more preferred arbitral seats, it remains to be seen whether these efforts will improve the perception of Italy as a "safe" seat. To be sure, however, it is a positive step in the right direction. [ABSTRACT FROM AUTHOR]

Rule 16.4 of the SIAC Rules precludes parties from appealing the SIAC Court's decisions on arbitrator challenges as opposed to Rule 40.2, which specifically preserves the right of the parties to appeal the SIAC Court's decision on challenge rendered under Article 16. In this case, it is difficult to discern whether the parties are entitled to appeal the decision or not. The article purports to address this conflict by undertaking cross-jurisdictional analysis and exploring the interplay of Rule 16.4 with Article 13 of the UNCITRAL Model Law. The article also explores various contractual and statutory interpretation rules to reconcile Rule 16.4 and Rule 40.2, and proposes the linguistic modifications to Rule 16.4 and Rule 40.2 to resolve the conflict. [ABSTRACT FROM AUTHOR]

Section 1782 of Title 28 U.S.C. ("Section 1782") is a discovery mechanism of U.S. law which aims at providing efficient assistance to parties in international disputes and at encouraging foreign countries by example to provide similar assistance to the U.S. courts. Even though the number of domestic regulations of judicial assistance for the taking of evidence is growing worldwide, the mechanism under Section 1782 remains quite unique in several aspects. Section 1782 applications have proven to be very useful also in obtaining evidence in support of international arbitrations. However, the use of this powerful tool in international arbitration raises specific questions that are still debated inside and outside the U.S. courts. The purpose of this article is to provide a practical overview of the issues that parties to an international arbitration seated in Switzerland may commonly encounter when they seek evidence located in the U.S. through a Section 1782 application. After an introduction to the requirements under Section 1782, the article discusses the rights of the parties to an international arbitration seated in Switzerland to make use of this mechanism. [ABSTRACT FROM AUTHOR]

In international arbitration, the designation of the applicable law by the parties does not always fully answer the question of which law arbitrators should apply to solve the dispute: sometimes, mandatory laws (or mandatory rules) that do not belong to the chosen applicable law, i.e. "foreign" mandatory laws, come into play. The question of whether and to what extent arbitrators should or can deviate from the parties' choice of law (which is a direct consequence of the principle of party autonomy) and apply foreign mandatory laws has been debated at length during the past decades. This article focuses on the scenario where arbitrators have to decide whether to apply a foreign mandatory law invoked by one party but rejected by the other. It aims to determine the incentives and potential risks that may exist in doing so, in particular in relation to the finality of the arbitral award in view of possible public policy concerns at the recognition, enforcement or setting aside stage. [ABSTRACT FROM AUTHOR]

The 2015 reform of Russian arbitration law has introduced a new means of dealing with mandatory rules in arbitration. It has done so by making certain disputes arbitrable where a number of conditions have been met - they are conditionally arbitrable. This article compares the new Russian approach to mandatory rule arbitration to the older second look doctrine as espoused by the US Supreme Court. [ABSTRACT FROM AUTHOR]

Partial awards on advances on costs have been and still remain a matter of controversy in international commercial arbitration. This article discusses the myth of partial awards on advances on costs rendered under the Swiss Rules, whereby the authors are of the view that the text of art. 41 of the Swiss Rules does not speak in favour of a substantive obligation of the parties to make payment of the advances. The authors opine further that, even if a tribunal were to find that according to art. 41 of the Swiss Rules the parties were under a substantive obligation to make payment of advances, there may be valid grounds for a party to refuse making such payments. And where a party raises such objections, the tribunal should enter into an analysis of the objections raised before making any decision on the substituting party's request of reimbursement. Finally, the authors are of the view that (in arbitrations seated in Switzerland and conducted under the Swiss Rules) merely by making substitute payment on behalf of the defaulting party the substituting party does not incur any damage in the sense of art. 97 CO. As a consequence, the authors conclude that under the Swiss Rules (and from a Swiss legal perspective) any decision rendered on the substituting party's request for reimbursement of the advance payments should only take the form of a procedural order, as opposed to the form of a partial award. This conclusion is in line with certain considerations made by the Swiss Federal Supreme Court in a series of decisions, in which the payment of advances was seemingly qualified as a matter of procedural law. [ABSTRACT FROM AUTHOR]

With regard to the impact of the Covid 19 pandemic on arbitration this article focuses on hearings and the legal and technical issues that virtual or remote arbitral hearings raise. Such hearings rapidly became the "new normal", particularly in international arbitration practice. [ABSTRACT FROM AUTHOR]

In most arbitrations, the precise amount to be paid by one party to another cannot be ascertained with certainty. Tribunals, therefore, often (have to) resort to estimating quantum issues. The article analyses how arbitrators can - in a dogmatically coherent approach - come to the conclusion that they may indeed do so. The issue is more complex than one may think because under some laws (as e.g. German) the provision on an estimate is included in the civil procedure codes while in others (as e.g. Swiss) it is included in the civil codes. For a tribunal seated in Switzerland, applying German law, that might mean that it cannot apply either provision. The result is obviously wrong. The article gives arbitrators a road map how they can conclude that they may indeed estimate the final amount to be awarded either by (i) qualifying the provision in the codes of civil procedure as substantive in nature or (ii) basing their competence on the general article dealing with the procedure, as e.g. Art. 182, 184 PILA. It also covers the question which is similar although different for tribunals applying the CISG. Finally, arbitrators applying the Swiss Rules in their 2021 version can now directly rely on Article 26(1) Swiss Rules (2021) which allows the tribunal to "determine the [...]burden of proof.". [ABSTRACT FROM AUTHOR]

Fossil fuels have been at the core of the development of modern societies and economies since the beginning of the industrial age. However, along with economic growth, stable political regimes and social well-being, the massive use of fossil fuels also brought about the depletion of natural resources and climate change and threatened biodiversity. Climate change in particular will disrupt countries and businesses in unprecedented fashion. The recently settled arbitration between Vattenfall and Germany pursuant to the state's decision to phase out nuclear power is one example of the types of energy disputes that arbitral tribunals will have to deal with in the context of the climate and biodiversity crises. Reflecting upon the Vattenfall case, this article explores how arbitral tribunals may assess in the energy sector the effect of a state's measure on climate change mitigation, biodiversity, natural resources and human health. Acknowledging that neither economics nor law can trump physical reality, the authors argue that a science-based test should be applied by arbitral tribunals when determining an investor's right to compensation in cases where a state adopts environmental or energy-related measures which affect its investment. The article concludes that without a sciencebased approach, arbitration cannot give due consideration to climate and biodiversity as essential elements of global justice. [ABSTRACT FROM AUTHOR]

The competitive climate arising from the liberal regime guaranteed by favor arbitrandum principle is likely to create a breeding ground for fraud in the field of arbitration law. In order to identify this risk, it is necessary to draw a distinction between, on the one hand, the litigants who resort to arbitration for the regular resolution of their dispute and, on the other hand, those who try to divert it from its legitimate purpose or to manipulate arbitrators into rendering an award on the basis of procedural manoeuvres. Ensuring an equal treatment for these two categories of litigants would consist in denying the favor arbitrandum, by challenging the rule that a liberal regime should be recognized only to authentic arbitration proceedings. In order to demonstrate that arbitration is not necessarily destined to become a potential tool for fraud, it is essential to set out the limits of the problem. In this perspective, this paper suggests a categorisation of different types of frauds specific to the field of arbitration, called "arbitral fraud" in this study. The article then takes into consideration the efforts that the arbitrators as well as the state courts will have to make in order to detect and to act against fraudulent arbitrations in the perspective of confronting the problem of arbitral frauds. [ABSTRACT FROM AUTHOR]

The practice of law has seen a boom in the use of technology, particularly in alternative dispute resolution (ADR). Owing to the characteristics of disputes catered to, ADR generally involves the use of technology as 'fourth participant' in the proceedings. Regardless of efficiency and cost effectiveness introduced by technology, until quite recently, parties and law practitioners showed preference for in-person court or ADR proceedings. Before Covid-19 pandemic disrupted the incumbent administrative and commercial activities around the world, virtual courts and virtual ADR proceedings were hardly in practice. Now, these encompass the truth of the practice of law. With the unforeseeable change in the demands of consumers of legal services, as well as, the manner in which justice is to be administered, there is an increasing need to find effective tools for the purpose. In this background, this article aims to discuss the feasibility of using artificial intelligence (AI) for arbitral decision-making. This article explores the current use-cases of AI to lay down the foundation for its use in arbitral decision-making. Further, the article discusses the suitability of an Arbitrator-Robot ("ArBot") for the process of arbitration. The article also discusses the limitations of AI based arbitral decision-making in light of its current models and use-cases, and further, plausible solutions to overcome these shortcomings. Finally, the article concludes that the use of AI in arbitral decision-making will cater to the changing expectations of the consumers of legal services. If access to justice can be provided in a demonstrably cost and time effective manner, the market can be expected to opt for such an alternative. [ABSTRACT FROM AUTHOR]

Despite the rejection of the Swiss Responsible Business Initiative, establishing binding due diligence obligations for multinationals and a legal basis for their liability for violations of business human rights ("BHR") are likely to remain on the political agenda in Switzerland and abroad. Arbitration seems to be particularly well positioned to offer significant advantages to all parties involved in BHR disputes. As opposed to state court litigation, arbitrating parties are able to select their respective arbitrators of choice based on their knowledge and ability to properly address the specificities of BHR matters. Arbitrating parties may further benefit from the possibility of gathering evidence across borders in an efficient manner. Finally, arbitration allows parties to find their own balance between a multinational's legitimate interest in keeping BHR disputes confidential and the desire for publicity. Despite the general lack of a preexisting contractual relationship between the parties to a BHR dispute, there are different ways to achieve an agreement to arbitrate. Such agreements are likely to be concluded more frequently if the perfect fits of arbitration for BHR disputes are highlighted more prominently in the future. [ABSTRACT FROM AUTHOR]

Arbitration proceedings have become lengthy and costly. Further, the allocation of costs is considered to be uncertain and unpredictable.36 Parties therefore look for available tools to reduce and control their costs. An example of such tool which has "moved into the spotlight",37 are Calderbank offers. They stem from an English Appeal Court decision of the same name. In contrast to other kinds of offers, Calderbank offers intend to have an effect on cost allocation. Especially in cases where the tribunal has discretion to decide upon the costs, they can be an additional factor to be considered. The potential to be a powerful weapon lies in the possibility of an early settlement avoiding further costs. They also support the parties to carefully assess their case with regard to drafting and rejecting an offer and encourage the principle of good faith between them. However, they can end up as a blunt sword because of an unfamiliarity with Calderbank offers. It is also shown that in some cases they have not been taken into consideration by tribunals, which leads to a further blunting. The efficient use of Calderbank offers will thus also depend on a successful implementation in the case management conference and the terms of reference. [ABSTRACT FROM AUTHOR]

The article presents statistical data derived from Swiss Federal Supreme Court proceedings pursuant to Article 190(2) PILA (challenges of international arbitral awards rendered in Switzerland). It is the 6th edition of the first statistical study published in 2007 and the most comprehensive one with regard to numbers of cases analysed. It also covers additional aspects, among other things, ISDS cases and the law governing the substance of the arbitration dispute, the lex causae. The sample consists of 660 decisions rendered by the Federal Court from 1989 and up until the end of 2019. The tally of commercial cases is the largest and amounts to almost two third. Almost one third, however, are sports-related proceedings where parties but for a few exceptions moved against CAS awards. The smallest tally refers to ISDS, i.e., 14 cases. Data evidences a 7 % chance of successfully setting aside of an award once the hurdle of admissibility is cleared. In other words, 93 % of the challenges are dismissed on the merits. Most cases are decided on the merits within 7 months. About 70 % of cases do not know the participation of a Swiss party while about the same amount of proceedings is governed by Swiss lex causae. [ABSTRACT FROM AUTHOR]

The Swiss Rules of International Arbitration (the “Rules”) were adopted in 2004 and revised a first time in 2012. In 2021, the Swiss Chambers' Arbitration Institution (SCAI) in charge of the Rules and the Swiss Arbitration Association (ASA) joined forces to set up the Swiss Arbitration Centre, replacing SCAI. This triggered a new revision of the Rules, which entered into force on 1 June 2021². It was followed by a practice note in March 2023 [ABSTRACT FROM AUTHOR]

The Swiss Rules of International Arbitration are efficient and appreciated arbitration rules applied in arbitrations seated in Switzerland and abroad, mostly to international cases. This article analyses the due process provision under the Swiss Rules, i.e. Article 15, by analysing the various concepts at stake, in particular the principle of party autonomy, the discretion of the arbitral tribunal in conducting the arbitral proceedings, the parties' right to equal treatment and the parties' right to be heard. This article then examines the principles to keep in mind when Swiss Rules international arbitrations are seated in Switzerland in which case the Swiss lex arbitri (Chapter 12 of the Swiss Private International Law Act) applies, before analysing all the decisions rendered by the Swiss Federal Supreme Court in relation to Swiss Rules international arbitrations seated in Switzerland since June 2012. The article then draws general conclusions from the above in order to provide arbitrators and parties with a better understanding of the tenets of due process under the Swiss Rules. [ABSTRACT FROM AUTHOR]

Within the last decade, third-party funding has become an important financial feature in international arbitration. However, third-party funding has been criticised, particularly because of the risk of so-called "arbitral hit and run" situations: Especially where a financially weak claimant relies on a third-party to fund the costs of arbitration, respondent faces the risk to be unable to enforce a potential adverse cost award against claimant. Therefore, it is argued that respondent has a justified interest to request from an arbitral tribunal to order claimant to provide security for costs. However, the Swiss international arbitration law does not provide an express legislation addressing security for costs nor the implications of third-party funding on such requests. This creates legal uncertainty. This article assesses the impacts of third-party funding on security for costs requests in international arbitration proceedings seated in Switzerland. This article shows that the involvement of a third-party funder should be considered by an arbitral tribunal as a factual circumstance among others when assessing security for costs requests under the Swiss lex arbitri. However, the mere involvement of a third-party funder alone is not a sufficient reason to order security for costs. Finally, the article shows that this approach under the Swiss lex arbitri is in line with best international arbitration practice. [ABSTRACT FROM AUTHOR]

Recent enforcement proceedings, in England and in France, of an ICC arbitral award rendered in Paris on 11 September 2017 highlight the divergent approaches of the two jurisdictions regarding the law applicable to international arbitration agreements and the risks of contradictory decisions resulting thereto. Following the conflict of laws method and the criteria set out by Article V(1)(a) of the New York Convention, the English Court of Appeal refused to grant enforcement to the award on the ground that it had not been transferred to the non-signatory respondent in the arbitration under the English lex contractus. Applying French material rules of international arbitration to the arbitration agreement, the Paris Court of Appeal dismissed the motion for annulment brought against the same award finding that the arbitral tribunal had jurisdiction over the respondent, the arbitration agreement having been extended to it as a result of its involvement in the performance of the contract containing it. This case shows that the lack of uniformity in the rules governing international arbitration agreements and in the type of judicial control to be undertaken by national courts, can lead to the unfortunate result that an arbitral award which has been considered valid at the place of arbitration will not be enforceable elsewhere. A reform of the New York Convention and/or the adoption of an international instrument regulating the material validity of international arbitration agreements would help achieving greater consistency. [ABSTRACT FROM AUTHOR]

There are different forms of arbitral neutrality. Insofar as arbitrators are concerned, the prevalent form in international arbitration is geographical neutrality through the application of third-party nationality. At a more substantive level, there is a form of 'internationally-minded' attitudinal neutrality towards foreign parties and cultures; the multi-nationality of the arbitrator could well here facilitate this type of neutrality yet most national and institutional rules effectively penalize the multi-national arbitrator, especially the prospective sole arbitrator or chairperson. The author shows this by reviewing the content (and as is often the case the silence) of the rules pertaining to the multi-nationality of the arbitrator. The author also examines - on the basis of mainly French and Swiss academic writings of the 1970s and 1980 - the difficult and sometimes conflicting policy considerations that lie behind the nationality of the arbitrators in arbitral selection, and by extension the policy choices and consequences relating now, with increasing frequency, to multi-nationality. [ABSTRACT FROM AUTHOR]

This note presents the judgment of the Swiss Federal Supreme Court of 18 May 2020. The Arbitral Tribunal declined jurisdiction and the Swiss Federal Supreme Court dismissed the challenge. While there was elaborate wording referring to international arbitration, one party did not want any international arbitration and the other party knew this. This was a factual finding of the Arbitral Tribunal and the Swiss Federal Supreme Court does not review facts, so it was bound by this factual statement about the parties' intent, which excluded the possibility to interpret the wording as an effective arbitration clause. While the circumstances of this case were peculiar, it serves as a useful reminder of the Swiss case-law on interpretation of arbitration clauses, of the powers of the Arbitral Tribunal and of the limits of the review by the Swiss Federal Supreme Court. [ABSTRACT FROM AUTHOR]

On 11 June 2020, an ICSID ad hoc committee decided to annul the award rendered in the Eiser v. Kingdom of Spain arbitration. The reason for this overturn is one of the arbitrators' lack of independence and impartiality by failing to disclose his ties with the expert appointed by the claimants in the underlying arbitration. For the committee, the failure to disclose this relationship to the parties amounted to the improper constitution of the arbitral tribunal and to a serious departure from a fundamental rule of procedure, both of which are grounds for annulment of ICSID awards. This is the first time in ICSID history that an award is annulled for an arbitrator's lack of independence and impartiality. While the decision was driven by the peculiar circumstances of the case, it raises the question of new disclosure obligations for arbitrators in investment arbitration. [ABSTRACT FROM AUTHOR]

Soft law continues to divide the arbitration community. While its supporters see it as a useful and even necessary form of regulation, its detractors view it as unwelcome interference in tribunals' and parties' procedural freedom. Drawing on the origins of soft law in Public International Law, as well as more recent academic debate in that field, the authors examine its legitimacy and efficacy in international arbitration. They argue that there are sufficient similarities between soft law in both areas of law to justify the application of the term to at least some good practice instruments. They conclude that far from there being a proliferation of soft law instruments in arbitration, considerable importance and influence attach only to a small number of instruments, themselves dependent on heavy institutional backing. Because of its lack of enforceability, uncertain foundation in common practices, and sometimes impracticable formulation as mere recommendation or guidance, soft law is an unwieldy and limited tool for regulating arbitration. To overcome past controversies and to give it meaningful effect the authors advocate a deflationary view of soft law, which shifts the focus away from presumed institutional authority to individual user acceptance, and derives the legitimacy of soft law from the quality of recommendations rather than postulated consensus. [ABSTRACT FROM AUTHOR]

Regulations on tribunal secretaries abound in international arbitration. Rather than providing clear guidance, the result is more discussion on the secretary's appropriate use. The article presents a new approach developed in the author's doctoral thesis. Instead of focusing on inflexible prescription, the article argues that the parties' legitimate expectations are decisive. Ideally, arbitrators would discuss these expectations with the parties and agree on a precise role in 'Tribunal Secretary Terms of Appointment'. In all other cases, the secretary's appropriate role depends on the degree of consent the parties have provided. While the role of undisclosed assistance is limited to clerical support, formally appointed tribunal secretaries may carry out 'common' secretary tasks. To charge secretaries with a more substantive role, the parties' informed consent is required. These three types of tasks are classified in Green, Orange and Red Lists, making up the 'Traffic Light Scale of Permissible Tribunal Secretary Tasks'. [ABSTRACT FROM AUTHOR]

In ex aequo et bono arbitration, the arbitrators' subjective perceptions of fairness function as an ultimate gap-filler for discerning the intentions of the parties. The arbitrators' concept of fairness then is inevitably influenced by how they perceive international commercial arbitration. There are three dominant theoretical frameworks for the justification of international arbitral procedures. The mono-localisation theory postulates that international arbitration is a component of the national order of a seat. The pluralistic theory posits that international arbitration is anchored in a plurality of national orders. The transnational theory hypothesises that international arbitration is an autonomous legal order. Given the current vigorous debates on theory in international arbitration, it is impossible for arbitrators to ignore the significance of those frameworks. A sound understanding of international commercial arbitration is built upon theoretical foundations comprising one strand of this debate. This paper addresses how arbitrators' explicit or more often implicit preference for one or more theories of arbitration affects ex aequo et bono. [ABSTRACT FROM AUTHOR]

How is a submission or pleading truly perceived by an arbitral tribunal? A difficult question, from a counsel's perspective! But the answer is of utmost importance for winning a case. Is the argument understandable and presented in a memorable manner? What will be the crucial issues in the deliberation of the arbitral tribunal? A shadow arbitrator helps to answer these queries. His or her job is to read the submissions, to step into the shoes of the actual arbitrators and then to provide unbiased feedback. This feedback is crucial for improving submissions and pleadings. To this end, a shadow arbitrator focuses less on content and more on psychological aspects. The article reviews the role of a shadow arbitrator, the various tasks he can fulfill, and the interfaces between his work and that of the arbitration team. What, if any, is the added value for the proceeding? And is the involvement of a shadow arbitrator ethically justifiable? These are some of the questions examined by Jörg RISSE in the present contribution. [ABSTRACT FROM AUTHOR]

The validity and enforceability of arbitration clauses in the articles of an association or a corporation is not addressed explicitly by Swiss law. Nevertheless, such clauses are generally regarded to be admissible and legally binding. There is, however, some uncertainty as to whether members of an association or shareholders of a corporation who have not expressly agreed to the arbitration clause are bound by it. This uncertainty will be addressed by provisions contained in the draft for a revision of Chapter 12 PILA (which governs international arbitration) and in the draft for a revision of Swiss stock corporation law. These provisions state the binding character of arbitration clauses in the articles of an association or a corporation. This article, consisting of two parts, explains the validity and binding effect of such arbitration clauses. The second part at hand first deals with the material validity of the clauses (III.B.3). It is explained that, by virtue of corporate law, they have binding effect upon all persons who are bound by the articles of an association. In addition, this second part contains a description of the rules on formal validity (III.B.4) and the necessary and admissible content of such clauses (III.C.). The article concludes with comments on the scope of such clauses, in particular with respect to the enforcement of penalty payments which a member owes the association (III.D.). [ABSTRACT FROM AUTHOR]

Anticipating the 7 August 2019 signature by 46 States of the United Nations Convention on International Settlement Agreements Resulting from Mediation (the "Singapore Convention"), the Swiss Chambers' Arbitration Institution issued a revised version of the Swiss Rules of Mediation on 1 July 2019. While both sets of rules aim to facilitate the enforcement of settlement agreements resulting from mediation, the revised Swiss Rules of Mediation also provide their users with new features such as, notably, a simplified procedure for the designation of a mediator, the issuance of institutional certificates and authentications, the creation of an Advisory Council for Mediation and improved links between arbitration and mediation. The purpose of this article is to expose the advantages and benefits of the revised Swiss Rules of Mediation and explain how users can anticipate and fully benefit from these and from the Singapore Convention which will enter into force on 12 September 2020. [ABSTRACT FROM AUTHOR]