Switzerland -
International Arbitration Convention March 27/ August 29, 1969
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Chapter
I: - General Provisions
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Article
1 - Scope
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This Convention shall apply to any proceedings before an
arbitral tribunal the seat of which is within one of the cantons party to
this Agreement. |
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However this Convention shall not affect the application
of rules of arbitration of private or public institutions or of arbitration
compromises or clauses insofar as they do not contravene any of the mandatory
provisions of this Convention. |
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The following provisions of this Convention are mandatory:
Article 2 (2) and (3). Articles 4 to 9, 12, 13, 18 to 21, 22 (2), Articles
25, 26 to 29, 31 (1), Article 33 (1), (a) to (f), (2) and (3), and Articles
36 to 46. |
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Article
2 - Seat of the Arbitral Tribunal
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The seat of the arbitral tribunal shall be at the place
chosen by agreement between the parties or by a decision of the body
designated by them for that purpose, or in default, by a decision of the
arbitrators. |
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Where neither the parties, nor the body designated by
them nor the arbitrators have chosen the place of the arbitration, the seat
shall be in the forum of the court which would have jurisdiction to try the
merits of the dispute in default of arbitration. |
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Where several courts would have jurisdiction for the
purposes of the preceding paragraph, the seat of the arbitral tribunal shall
be in the forum of the first judicial authority seised by virtue of Article
3. |
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Article 3 - Competent Judicial Authority at the Seat of the Arbitral
Tribunal
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Subject to Article 45 (2), the high court of common
civil jurisdiction of the canton in which the arbitration takes place shall
be the competent judicial authority to: |
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a. a. appoint the arbitrators where they have not been
designated by the parties or by the body chosen by the parties, |
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b. determine objections to the arbitrators, revoke their
authority and provide for their replacement, |
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c. extend in time the authority of the arbitrators, |
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d. assist in executing the measures requested by the
arbitral tribunal for the taking of evidence, |
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e. accept deposit of the arbitral award and give
notification of it, |
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f. give judgement on actions to annul or review the
award, |
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g. declare the award enforceable. |
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Chapter
II: - The Arbitration Agreement
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Article 4 - Compromises and Arbitration Clauses
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The arbitration agreement shall be concluded in the form
of a compromise or an arbitration clause. |
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In a compromise, the parties submit an existing dispute
to arbitration. |
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Arbitration clauses may refer only to future disputes
arising out of a particular legal relationship. |
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Article 5 - Subject Matter of the Arbitration
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The arbitration may relate to any right of which the
parties may freely dispose unless the suit falls within the exclusive jurisdiction
of a State authority by virtue of a mandatory provision of the law. |
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Article 6 - Form
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The arbitration agreement shall be in writing. |
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It may take the form of a written declaration whereby
the parties agree to adhere by the statutes of a body corporate provided that
the declaration expressly refers to the arbitration clause contained in the
statutes or rules made under them. |
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Article 7 - Prohibition of the Exclusion of Lawyers
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Any provision in an arbitration clause prohibiting the
assistance of lawyers in an arbitration, whether as arbitrators, secretaries
or representatives of the parties, shall be void. |
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Article 8 - Jurisdiction of the Arbitral Tribunal
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If the validity of the arbitration agreement or its
content or scope are disputed before the arbitral tribunal, that tribunal shall
in an interlocutory order or final award determine its own jurisdiction. |
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The plea of lack of jurisdiction of the arbitral
tribunal must be raised prior to any defence on the merits. |
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Article 9 - Appeal as to Jurisdiction
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The interlocutory order whereby the arbitral tribunal
declares itself to have or not to have jurisdiction may form the basis of an
immediate action for annulment as provided in Article 36 (b). |
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Chapter
III: - Designation and Appointment of the Arbitrators. Duration of Their
Authority. Lis Pendens
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Article 10 - Number of Arbitrators
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The arbitral tribunal shall consist of three arbitrators,
unless the parties have agreed on a different uneven number and in particular
on a single arbitrator. |
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However the parties may agree to designate an even
number of arbitrators without a designation of an umpire. * |
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Article 11 - Designation by the Parties
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The parties may designate the arbitrator or arbitrators
by common consent in the arbitration agreement itself or in a later agreement.
They may also cause them to be designated by a body of their choice. |
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If an arbitrator is designated only by reference to his
office, the designation shall be deemed to refer to the holder of the office
at the time of acceptance of the arbitral function. |
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In default of consent, each party shall designate an
equal number of arbitrators and the arbitrators thus designated shall
unanimously elect an umpire. |
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Where the arbitrators are even in number, the parties
shall agree either to give a casting vote to the umpire, or to require a
unanimous or qualified majority vote from the tribunal. |
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Article 12 - Appointment by the Judicial Authority
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If the parties cannot agree on the designation of a
single arbitrator, if one of them fails to designate the arbitrator or
arbitrators as required of him, or if the designated arbitrators cannot agree
on the choice of an umpire, the judicial authority referred to in Article 3
shall, at the request of one of the parties, proceed to make the appointment
unless the agreement has provided for another appointing body. |
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Article 13 - Lis Pendens
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The arbitral proceedings shall be deemed to be pending: |
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a. from the time when one of the parties seises the
arbitrator or arbitrators designated in an arbitration clause of the dispute;
or |
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b. in default of such designation in the arbitration
clause, from the time when one of the parties commences the procedure for the
designation of arbitrators, provided for in the arbitration clause; or |
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c. in default of a procedure for the designation of
arbitrators, provided for in the arbitration clause, from the time when one
of the parties petitions the competent judicial authority; or |
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d. in default of an arbitration clause, on the signing
of the compromise. |
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When the rules of arbitration accepted by the parties or
the arbitration agreement provide for a conciliation procedure, the
commencement of this procedure shall be assimilated to the commencement of
the arbitral proceedings. |
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Article 14 - Acceptance by the Arbitrators
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The arbitrators must confirm their acceptance of their
office. |
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The arbitral tribunal shall be deemed to be properly
constituted only when all the arbitrators have accepted their mandate with
respect to the dispute submitted to them. |
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Article 15 - Secretary
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The arbitral tribunal, with the agreement of the parties,
may designate a secretary. |
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Articles 18 to 20 shall be applicable to objections
raised in respect of a secretary. |
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Article 16 - Duration
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The parties may, either in the arbitration agreement or
in a later agreement, impose a time-limit on the authority of the arbitral
tribunal. |
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In this case, the duration of the authority may be
extended, each time for an ascertained period, either by agreement between the
parties, or by a decision of the judicial authority provided for in Article
3, at the request of one of the parties or of the arbitral tribunal. |
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If the request is made by one of the parties, the other
party shall be entitled to be heard. |
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Article 17 - Unjustifiable Delay
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The parties may at any time petition the judicial
authority provided for in Article 3 with respect to unjustifiable delay on
the part of the arbitral tribunal. |
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Chapter
IV: - Objection To, Revocation And Replacement of The Arbitrators
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Article 18 - Objection to an Arbitrator
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The parties may object to an arbitrator on any grounds
which the Act on Federal Judicial Administration provides for the obligatory
or facultative withdrawal of the federal judges, and on any grounds set out
in rules of arbitration to which the parties have submitted. |
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Objection may also be raised in respect of any
arbitrator who has been deprived of the exercise of civil rights or who has
been sentenced to deprivation of liberty for a crime or delict damaging his
reputation. |
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A party may not object to an arbitrator designated by
him unless the ground for such objection arises after such designation, or he
establishes that he was not aware of it at the time of designation. |
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Article 19 - Objection to the Arbitral Tribunal
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Objection may be raised in respect of the arbitral
tribunal as such, if one of the parties has exercised an overriding influence
in respect of the designation of the members. |
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A new arbitral tribunal shall be established according
to the method provided for in Article 11. |
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The parties shall retain the power to designate as an
arbitrator any member of the tribunal, to which objection has been raised. |
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Article 20 - Time Limits
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The objection must be made before any issue is raised on
the merits, or as soon as the requesting party has knowledge of the grounds
for objection. |
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Article 21 - Dispute
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In case of dispute, the judicial authority provided for
in Article 3 shall determine the objection. |
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The parties shall be entitled to adduce evidence. |
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Article 22 - Revocation
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The authority of any arbitrator may be revoked by
written agreement of the parties. |
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If there is a valid ground, the judicial authority
provided for in Article 3, at the request of one of the parties may also
terminate the authority of an arbitrator. |
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Article 23 - Replacement
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If an arbitrator dies, is objected to, resigns, or his
authority is revoked, he shall be replaced according to the method adopted
for his designation or appointment. |
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If such replacement cannot take place, the new
arbitrator shall be appointed by the judicial authority provided for in
Article 3, unless it follows from the arbitration agreement that that
agreement should lapse. |
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In default of agreement between the parties, the
judicial authority provided for in Article 3, after consultation with the arbitral
tribunal shall determine the extent to which the proceedings in which the
replaced arbitrator took part shall remain valid. |
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The replacement of one or several arbitrators shall not
postpone the running of the time-limit in which the arbitral tribunal may be
required to make its award. |
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Chapter
V: - Arbitral Procedure
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Article 24 - Determination
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The arbitral rules of procedure shall be determined by
agreement between the parties, or in default of such agreement, by decision
of the arbitral tribunal. |
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If the rules of procedure have not been determined
either by agreement between the parties or by a decision of the arbitral
tribunal, the Federal Act on Federal Civil Procedure shall be applied by
analogy. |
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Article 25 - Right to be Heard
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The selected rules of procedure must in any case accord
due respect to the principle of equality of the parties and the rules must
permit both parties: |
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a. to exercise their right to be heard and in particular
to expound their factual and legal arguments |
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b. to have sufficient time to become acquainted with the
documents on the file |
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c. to attend any sittings for the taking of evidence or
oral hearings which the arbitral tribunal may order |
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d. to be represented or assisted by a representative of
their choice. |
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Article 26 - Provisional Orders
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The public judicial authorities alone have jurisdiction
to make provisional orders. |
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However, the parties may voluntarily submit to provisional
orders proposed by the arbitral tribunal. |
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Article 27 - Assistance of the Judicial Authorities
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The arbitral tribunal shall itself carry out the taking
of evidence. |
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If necessity dictates, the arbitral tribunal may
request the assistance of the judicial authority provided for in Article 3.
That authority shall act in accordance with its cantonal law. |
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Article 28 - Third Party Intervention and Proceedings
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The intervention of a third party or third party
proceedings may be authorised only by virtue of an arbitration agreement
between the third party and the parties in dispute. |
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Furthermore such matters are subject to the consent of
the arbitral tribunal. |
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Article 29 - Set-Off
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Where one of the parties pleads a set-off on the basis
of a legal relationship in respect of which the arbitral tribunal does not
have jurisdiction under the terms of the arbitration agreement, and the
parties do not agree to extend the arbitration to cover that legal
relationship, the proceedings shall be stayed and a reasonable time shall be
allowed to the party making the claim to establish it before the court with
jurisdiction. |
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When the court with jurisdiction has made a
determination, the proceedings shall, at the request of one of the parties,
be resumed. |
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If the arbitral tribunal has been given a time-limit in
which to make its award, such period shall not continue to run during the
stay of proceedings. |
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Article 30 - Advance of Costs
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The arbitral tribunal may order an advance of
foreseeable costs and may make the procedural processes dependent thereon. It
shall determine the apportionment of such advance. |
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If one of the parties does not advance the sums
required of him, the other party may elect to make an advance of all the
costs or to forego the arbitration. If he chooses the latter course, the
parties shall no longer be bound by the arbitration agreement in respect of
the dispute in question. |
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Chapter
VI: - Arbitral Award
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Article 31 - Deliberation and Award
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All the arbitrators must participate in all the
deliberations and decisions of the arbitral tribunal. |
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Subject to Article 11 (4), the award shall be made on
the basis of a simple majority of votes, unless the arbitration agreement
requires unanimity or a qualified majority. |
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The arbitral tribunal shall make its determination
according to the rules of the applicable law, unless the parties have, in the
arbitration agreement, authorised it to make its determination according to
equity. * |
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The arbitral tribunal may not make an award in favour
of a party, which is more or other than that party claimed, unless a
particular provision of the law authorises it to do so. |
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Article 32 - Partial Awards
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Unless the parties otherwise agree, the arbitral
tribunal may make several awards. |
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Article 33 - Content of the Award
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The arbitral award shall contain: |
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a. the names of the arbitrators |
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b. the designation of the parties |
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c. a statement of the seat of the arbitration |
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d. the relief prayed for by the parties or, in default
of such, the question to be determined |
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e. the factual, legal and, as the case may be, equitable,
1 reasons for the decision, unless the parties expressly waive this
requirement |
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f. the decision on the substance |
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g. the decision as to the amount and burden of costs. |
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The award shall be dated and signed by the arbitrators.
The signature of the majority of the arbitrators shall suffice if there is a
statement in the award that the minority refuses to sign. |
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If the mandate of the arbitral tribunal is to designate
one or more arbitrators, paragraph 1 (e) of this Article shall not apply. |
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Article 34 - Agreement of the Parties
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Should the parties settle their dispute during the
course of the arbitration, and thus bring the arbitration to an end, the
arbitral tribunal shall register this settlement in the form of an award. |
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Article 35 - Deposit and Notification
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The arbitral tribunal shall attend to the deposit of
the award with the judicial authority provided for in Article 3. |
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The award shall be deposited together with as many
copies of it as there are parties in cases where paragraph 4 of this Article
applies. |
138 |
If the award is not drafted in one of the official
languages of the Swiss Confederation, the authority with whom it is deposited
may require an authenticated translation of the award. |
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Such authority shall notify the parties of the award,
and shall inform them of the date of deposit. |
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The parties may waive the deposit. They may likewise
waive notification of the award by the judicial authority; in this case, the
notification shall be attended to by the arbitral tribunal. |
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Chapter
VII: - Actions for Annulment or Review
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I. Action for Annulment
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Article 36 - Grounds
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An action for annulment of the arbitral award may be
brought before the judicial authority provided for in Article 3, where it is
alleged that: |
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a. the arbitral tribunal was not properly constituted |
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b. that the arbitral tribunal erroneously declared
itself to have or not to have jurisdiction |
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c. that it pronounced on points not submitted to it or,
subject to Article 32, failed to make a determination on one of the items in
the claim |
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d. that there was a breach of one of the mandatory
procedural rules referred to in Article 25 |
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e. that the arbitral tribunal awarded to one of the
parties something more or other than claimed, without being authorised to do
so by a provision of the law |
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f. that the award is arbitrary in that it was based on
findings which were manifestly contrary to the facts appearing on the file,
or in that it constitutes a clear violation of law or equity |
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g. that the arbitral tribunal made its award after the
expiration of the time-limit imposed on it in which to accomplish its mission
|
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h. that the conditions of Article 33 were not complied
with or that the order is unintelligible or contradictory |
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i. that the fees of the arbitrators fixed by the
arbitral tribunal are manifestly excessive. |
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Article 37 - Period of Limitation
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The action for annulment must be brought within 30 days
of the notification of the award. |
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The action shall be admissible only if arbitral
remedies provided in the agreement of the parties have been exhausted. |
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Article 38 - Suspensive Effect of Action
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The action shall not have the effect of suspending the
award. However the judicial authority provided for in Article 3 may grant it
such effect if one of the parties so requests. |
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Article 39 - Remittal to the Arbitral Tribunal
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The judicial authority seised of the action may, having
heard the parties and if it sees fit, remit the award to the arbitral
tribunal and impose a period of limitation for the amendment or supplementation
of the award. |
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Article 40 - Decision
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If the judicial authority does not remit the award to
the arbitral tribunal or if the award is not amended or supplemented within
the stated period, the judicial authority shall give judgment on the action
for annulment, and if it finds such action well-founded may annul the award. |
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The annulment may relate to certain items only in the
award, unless the other items are dependent on them. |
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Where the action is based on Article 36 (1) the award
shall be annulled only in respect of the fees, and the judicial authority
shall itself determine the amount of such fees. |
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Where the award is annulled, the arbitrators shall
rehear the case, unless objection is made on the ground that they
participated in the previous proceedings or on some other ground. |
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II. Review
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Article 41 - Grounds
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The award may be reviewed: |
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a. Where it was affected by deeds which are punishable
according to Swiss law. Such deeds must be established in a penal sentence
unless the criminal proceedings could not result in sentence for reasons
other than lack of evidence. |
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b. Where it was given in ignorance of important facts
in existence prior to the award or of evidence of decisive importance, and it
was impossible for the claimant to present such facts or evidence during the
proceedings. |
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Article 42 - Period of Limitation
|
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The action for review must be brought before the
judicial authority provided for in Article 3 within 60 days of the date on which
the claimant was aware of the grounds for review. However it may not be
brought later than 5 years after the notification of the award. |
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Article 43 - Remittal to the Arbitral Tribunal
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If the action for review succeeds, the judicial
authority shall remit the case to the arbitral tribunal for a rehearing. |
175 |
The arbitrators prevented from rehearing the case shall
be replaced in accordance with the provisions of Article 3. |
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If it is necessary to set up a new arbitral tribunal,
the arbitrators shall be designated or appointed in accordance with Articles
10 to 12. |
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Where the case is remitted to the arbitral tribunal,
Article 16 shall be applied by analogy. |
178 |
Chapter
VIII: - Enforcement of Arbitral Awards
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Article 44 - Declaration of Enforceability
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At the request of one of the parties, the judicial
authority provided for in Article 3 shall declare enforceable, to the same
extent as a judgment, any arbitral award: |
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a. which the parties have formally accepted; or |
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b. in respect of which no action for annulment has been
brought within the period of limitation stipulated in Article 37 (1); or |
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c. in respect of which an action for annulment has been
brought in due time, in the absence of an order causing that action to
suspend the award; or |
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d. in respect of which an action for annulment has been
dismissed or is statutebarred. The declaration of enforceability may not be
made if the award is contrary to Article 5. |
185 |
The certificate of the enforceable character of the
arbitral award shall be affixed at the foot of the award. |
186 |
The arbitral award shall not be made subject to
provisional enforcement. |
187 |
Chapter
IX: - Final Clauses
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Article 45 - Procedure
|
189 |
The cantons shall determine matters of procedure before
the judicial authority provided for in Article 3. Decisions as to the
appointment of or objection to the arbitrators, revocation of their authority
or their replacement shall be subject to summary procedure. |
190 |
The cantons may vest jurisdiction in part or in whole,
in accordance with Article 3 (a) to (e) and (g), in a judicial authority
other than that provided for in that Article. In this case, the parties may,
notwithstanding, submit their applications to the high court of common civil
jurisdiction of the canton. |
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Article 46 - Consequences of Entry Into Force
|
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On the entry into force of this Convention in a canton,
subject to Article 45, all legal provisions of that canton concerning
arbitration shall be repealed. |
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