The Bulletin in Brief


Bulletin in Brief from the ASA Bulletin Vol. 42 (2024) Issue 1

In his message, Welcome to the Global Swiss Arbitration Association (AGSA), ASA President Felix DASSER celebrates ASA’s dual identity: its Swiss roots and traditions combined with a global outreach and ambition.

Articles
On 17 October 2023, the highest administrative court in France, the Conseil d’État rendered its decision in the SMAC v. Ryanair saga, in which it held that French public entities cannot refer their disputes to international arbitration, subject to derogations provided by express legislative provisions or international conventions. As explained by Samantha NATAF and Victor CHOULIKA, this decision contradicts the current case law of the French Court de Cassation, resulting in the creation of two distinct enforcement regimes in France in matters involving public entities, depending on the parties to the arbitration agreement and the subject matter of the contract that gave rise to the dispute. (Samantha NATAF, Victor CHOULIKA, Arbitration and Public Entities in France: Navigating the Unknown?)

What happens when the arbitral institution designated by the parties in the arbitration agreement no longer exists? This was the question at the heart of the Swiss Federal Supreme Court’s decision 4A_19/2023, which provides guidance on the law governing the interpretation of pathological arbitration clauses under the New York Convention. Andreas SCHREGENBERGER and Rodrigo CARÈ report on this decision and analyse how the law applicable to the substantive validity of the arbitration agreement may impact the interpretation of pathological arbitration clauses. (Andreas SCHREGENBERGER, Rodrigo CARÈ, Pathological Arbitration Clauses: Role of the Law Applicable to the Substantive Validity of the Arbitration Agreement under Article II.3 NYC.)

Despina MAVROMATI reviews a selection of the most important decisions rendered in 2023 by the Swiss Federal Supreme Court on applications to set aside awards rendered by the Court of Arbitration for Sport (CAS). These decisions confirm the Supreme Court’s restrictive approach to grievances based on alleged public policy violations and highlight the specificities of CAS arbitration proceedings, such as the CAS’s jurisdiction to hear set-off defences or the parties’ duty to examine notorious facts that are relevant to the arbitrators’ independence and impartiality. (Despina MAVROMATI, Selected Swiss Federal Tribunal Judgments in 2023 in Annulment Proceedings against CAS Awards.)

Daniela FRENKEL comments a recent decision of the Swiss Federal Supreme Court (4A_148/2023) on the autonomy/separability of the arbitration agreement. In that case, one of the signatories of the main contract containing the arbitration agreement suffered from memory problems at the time of
signing. This raised the question of his capacity and its impact on the validity of both the main contract and the arbitration agreement. Indeed, is it possible that a person may lack the required discernment to grasp the meaning and scope of the main contract, but not of the arbitration agreement it contains? In such a scenario, could the resulting invalidity only affect the main contract and not the arbitration agreement? This decision shows that these questions must be answered in the affirmative and that, under Swiss law, the capacity to act is a relative concept that must be assessed for each legal act separately. (Daniela FRENKEL, Autonomy of Arbitration Agreements and Capacity of Judgement.)

As part of the general reform of Italian arbitration law which entered into force on 28 February 2023, the Italian legislator granted arbitral tribunals the general authority to order interim measures, a power historically reserved to state courts. Louis CHRISTE and Pietro MEINERI give an overview of the authority of arbitral tribunals seated in Italy to issue interim measures under the new Italian legislation and compare it with the regime applicable in Switzerland, while reminding us of the importance of carefully considering the distinctive features of the relevant legal systems when drafting the arbitration clause. (Louis CHRISTE, Pietro MEINERI, The Power to Order Interim Measures in Italian Arbitration – First Impressions of the Recent Reform.)

To what extent does the principle of the secrecy of deliberations (secret du délibéré) that applies to decisions rendered by Tunisian courts also apply to arbitrations seated in Tunisia? Anis BETTAIEB sheds light on how Tunisian courts have ruled on this question: considering this principle to be non-binding in arbitration, they have accepted that certain adjustments can be made to account for the specific nature of arbitral proceedings, thus allowing dissenting opinions or the participation of tribunal secretaries in the arbitral process. (Anis BETTAIEB, Le secret du délibéré arbitral en droit tunisien.)

Foreign Case Law
République Française, Conseil d’État, Arrêt 465761 du 17 octobre 2023 [Enforcement of LCIA awards denied in France – No arbitration with public entities – Subject-matter arbitrability]

Swiss Federal Supreme Court Decisions
4A_63/2023, Urteil vom 24. Mai 2023 [Swiss Stock Exchange arbitration – Challenge of arbitrators’ fees and allocation of burden of proof]
4A_550/2023, Verfügung vom 16. November 2023 [Withdrawal of request to set aside award]
4A_494/2023, Urteil vom 12. November 2023 [Infra petita]
5A_78/2023, Urteil vom 23. November 2023 [Referral to Russian arbitration court found to designate commercial court]
4A_19/2023, Urteil vom 12. Juli 2023 [Designated (Russian) arbitration institution no longer exists – Arbitration agreement inoperative]
4A_232/2022, Arrêt du 22 décembre 2022 [Decision of CAS Anti-doping division is not an award – Jurisdiction over athlete after his retirement]
4A_486/2022, Arrêt du 26 avril 2023 [Double jeopardy and res judicata – Misstated party position in award was not relevant to the outcome – Wrong
decision on burden and standard of proof no ground for annulment]
4A_484/2022, Arrêt du 26 avril 2023 [Arbitrator practising in same chamber]
4A_22/2023, Arrêt du 16 mai 2023 [Excessive delay in issuing award – Alleged late extension of deadline to render award by arbitral institution]
4A_184/2023, Arrêt du 5 juin 2023 [No right of victim of sexual harassment to participate in disciplinary proceedings against author – Legal aid refused]
4A_254/2023, Arrêt du 12 juin 2023 [Late upload on electronic platform]
4A_256/2023, Arrêt du 6 novembre 2023 [Local court decision not res judicata for arbitration – Award granting less than what was requested is not ultra petita]
4A_456/2023, Urteil vom 11. Dezember 2023 [Arbitrators not required to address any and all arguments raised by a party – Error in law not a ground for challenge]