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The Swiss Rules of International Arbitration

Roots, Revision and Experiences in a Nutshell

Dr. Philipp Habegger LL.M., LALIVE SA, President of the Arbitration Court

Belgrade, 9 December 2015

Swiss Rules: Roots, Revision and Experiences

1 Roots2 Strengthen the supervisory powers of the

arbitral institution3 Accelerate the proceedings4 More flexibility for the arbitral tribunal5 Better control of the costs6 Emergency relief

Swiss Rules: Roots, Revision and Experiences

1 Roots • UNCITRAL Arbitration Rules 1976• Arbitration Rules Geneva Chamber of Commerce and Industry 2000• International Arbitration Rules Zurich Chamber of Commerce 1989• TI, VD, BS, BESwiss Rules of International Arbitration 2004Swiss Rules of International Arbitration 2012; «light revision»

which considered:- UNCITRAL Arbitration Rules 2010- ICC Rules of Arbitration 2012- CEDR Rules for the Facilitation of Settlement in International

Arbitration 2009- IBA Rules on the Taking of Evidence in International Arbitration

2010- AAA/ICDR 2009; SCC 2010; SIAC 2010- ICC Commission Techniques for Controlling Time and Costs in

Arbitration 2007

Swiss Rules: Roots, Revision and Experiences

1 Roots

UNCITRAL Rules → Swiss Rulesad hoc → institutional

- changes and additions to adapt a set of ad hoc rules to institutional arbitration

- changes and additions reflecting modern practice, e.g.Art. 1(4): autonomy of the arbitral procedureArt. 4(1): consolidationArt. 4(2): joinderArt. 15(8): settlement facilitationArt. 26(3): ex parte interim reliefArt. 42: expedited procedureArt. 43: emergency relief / arbitration

Swiss Rules: Roots, Revision and Experiences

2 Strengthen the supervisory powers of the arbitral institution

Swiss Rules: Roots, Revision and Experiences

2 Strengthen the supervisory powers of the arbitral institution

«By submitting their dispute to arbitration under these Rules, the parties confer on the Court, to the fullest extent permitted under the law applicable to the arbitration, all of the powers required for the purpose of supervising the arbitral proceedings otherwise vested in the competent judicial authority [...]» (Art. 1(4))

«In the event of any failure in the constitution of the arbitral tribunal under these Rules, the Court shall have all powers to address such failure […]» (Art. 5(3))

Swiss Rules: Roots, Revision and Experiences

2 Strengthen the supervisory powers of the arbitral institution

«If the Respondent neither submits an Answer to the Notice of arbitration nor raises an objection to the arbitration being administered under these Rules, the Court shall administer the case, unless there is manifestly no agreement to arbitrate referring to these Rules» (Art. 3(12))

Better control of the costs → objective no. 5

Swiss Rules: Roots, Revision and Experiences

3 Accelerate the proceedings

Swiss Rules: Roots, Revision and Experiences3 Accelerate the proceedings

Time limit for the payment of the deposits of costs reduced to 15 days (Art. 41(4))

Now time limit of 15 days for the challenge of an arbitrator (Art. 11(1))

Now time limit of 15 days for the agreement on the challenge by all parties respectively the withdrawal by the arbitrator (Art. 11(2))

Swiss Rules: Roots, Revision and Experiences4 More flexibility for the arbitral tribunal

Swiss Rules: Roots, Revision and Experiences4 More flexibility for the arbitral tribunal

«All participants in the arbitral proceedings shall act in good faith, and make every efforts to contribute to the efficient conduct of the proceedings and to avoid unnecessary costs and delays. [...]» (Art. 15(7)) may be taken into account in cost allocation (Art. 40(1+2))

«With the agreement of each of the parties, the arbitral tribunal may take steps to facilitate the settlement of the dispute before it. Any such agreement by a party shall constitute a waiver of its right to challenge an arbitrator’s impartiality based on the arbitrator’s participation and knowledge acquired in taking the agreed steps» (Art. 15(8))

Modification, suspension or termination of interim measures on the arbitral tribunal’s own initiative (Art. 26(1))

Ex parte interim measures (Art. 26(3))

Swiss Rules: Roots, Revision and Experiences

4 More flexibility for the arbitral tribunal

Consolidation, Art. 4(1)

Joinder, Art. 4(2)

Workshop II

Swiss Rules: Roots, Revision and Experiences5 Better control of the costs

Swiss Rules: Roots, Revision and Experiences5 Better control of the costs

«Before rendering an award [...], the arbitral tribunal shall submit to the Secretariat a draft thereof for approval or adjustment by the Court of the determination on costs [...]. Any such approval or adjustment shall be binding upon the arbitral tribunal» (Art. 40(4))

«The arbitral tribunal, [...] after consulting with the Court, shall request each party to deposit an equal amount as an advance for the costs [...] and the Administrative Costs [...]» (Art. 41(1))

«The Secretariat or, if so requested by the Secretariat, the arbitral tribunal, is to hold the deposits to be paid by the parties in a separate bank account which is solely used for, and clearly identified as relating to, the arbitral proceedings in question» (Appendix B Sect. 4.1)

Swiss Rules: Roots, Revision and Experiences

5 Better control of the costs

«With the approval of the Court, part of the deposits may from time to time be released to each member of the arbitral tribunal as an advance on costs, as the arbitration progresses» (Appendix B Sect. 4.2)

«[...] The Court shall issue general guidelines for the accounting of such expenses [i.e. the expenses of the arbitral tribunal and the emergency arbitrator]» (Appendix B Sect. 3)

https://www.swissarbitration.org/sa/download/guidelines_for_arbitrators_2012.pdf

Swiss Rules: Roots, Revision and Experiences5 Better control of the costs

Better protection of the arbitrators:

Reduction of the time limit for payment of deposits (Art. 41(4)) → objective no. 3 “acceleration”

Provisional deposit for expedited procedures(Art. 42(1)(a) and Appendix B Sect. 1.4)

Specific deposit for emergency relief proceedings(Art. 43(1)(c) and Appendix B Sect. 1.6)

Swiss Rules: Roots, Revision and Experiences

6 Emergency relief

Swiss Rules: Roots, Revision and Experiences

6 Emergency relief (Art. 43 Swiss Rules)

• International trend

• Opting-out solution (Art. 43(1)), transitional regime• Same effects as a decision of «interim measures of

protection» made pursuant to Art. 26 (Art. 43(8)):– May be rendered in the form of an interim award (>< ICC)– Ex parte relief available (>< ICC; others)

• Emergency arbitrator to determine and allocate party costs if no arbitral tribunal is constituted (Art. 43(9); (>< ICC)

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