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Switzerland: Excerpt on International Arbitration from the Draft Statute on Private International Law*

Published online by Cambridge University Press:  04 April 2017

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Type
Legislation and Regulations
Information
International Legal Materials , Volume 23 , Issue 4 , July 1984 , pp. 713 - 718
Copyright
Copyright © American Society of International Law 1984

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Footnotes

*

[Reproduced from the English translation prepared for International Legal Materials by Charles H. Poncet, Lalive & Budin, Geneva, from the French text contained in“Message concernant une loi federale sur le droit international prive,” November 10, 1982, pp. 497-499. The assistance of Nicholas M. Watkins is gratefully acknowledged.]

References

(1) Translator's note : the concept requires some clarification. The French text of the draft mentions “toute cause de nature patrimoniale” ; the German text refers to “jeder vermogensrechtliche Anspruch” . Hence our choice of “any claim related to a party's assets or rights thereon” as the least bad translation. Indeed the English “patrimonial” has quite a different meaning from its French counterpart : “patrimonial”, in French, means that which relates to a person's assets, finances, belongings and so forth. Its use indicates that any contractual, tortious, commercial or financial claim can be submitted to arbitration.

(2) Translator's note ; I have used the word “equity” here for the French “equite” and the German “nach Billigkeit”. It means that the arbitration tribunal may - if authorized to do so by the parties - reach what it deems an equitable solution even though a strict application of the law governing the dispute might lead to a different conclusion.

(3) Translator's note : under well established Swiss case law and also pursuant to article 87 of the Statute organizing the federal courts of Switzerland, a decision or an award is “arbitrary” when it totally contradicts the most elementary concepts of law. For instance, a court would behave “arbitrarily” if it believed a party's statements and not the other's when there is no evidence supporting either, or by using materials to which one party had no access, or by recklessly disregarding some important facts or legal issues.