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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]

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]

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]