On 1 January 2023, the revised Swiss Code of Obligations (“CO”) will enter into force. The revised act includes a new article 697n, which expressly allows Swiss corporations (and by reference also limited partnerships and limited liability companies) to include a statutory arbitration clause in their articles of association.
Unless otherwise stipulated, the statutory arbitration clause applies to all corporate law disputes and is binding on the company itself, the company’s governing bodies and its members as well as the company’s shareholders, irrespective of whether the particular person gave its consent thereto.
Arbitrations based on such a statutory arbitration clause must, by law, be seated in Switzerland and are subject to the provisions on domestic arbitration contained in part 3 of the Swiss Civil Procedure Code (“CPC”). The articles of association may regulate the specifics of the arbitration proceedings, be it directly or by reference to institutional rules. In either case, however, the articles of association must ensure certain minimum standards of participation to all persons who may be directly affected by the legal effects of the arbitral award.
In the light of this new provision, the Swiss Arbitration Center has recently published “Supplemental Swiss Rules for Corporate Law Disputes” (“Supplemental Swiss Rules”), which will supplement the Swiss Rules of International Arbitration (“Swiss Rules”) for the purpose of administering and conducting arbitration proceedings in relation to corporate law disputes as provided for under the new art. 697n CO.
The Supplemental Swiss Rules will apply to all arbitration proceedings that regard a corporate law dispute and are initiated on or after 1 January 2023 pursuant to a statutory arbitration clause that is contained in the articles of association of a corporate entity and refers to the Swiss Rules. To the extent the Supplemental Swiss Rules do not specifically regulate a matter, the provisions of the Swiss Rules will apply.
The main points regulated under these Supplemental Swiss Rules are the following:
The Supplemental Swiss Rules propose a Model Statutory Arbitration Clause, which contains both recommended content required for a valid statutory arbitration clause (so called essentialia negotii of the statutory arbitration clause) as well as optional content. The suitability of such proposed content will naturally depend on the particular circumstances of each company, so that companies that wish to introduce a statutory arbitration clause are nevertheless well advised to carefully consider its intended content and seek legal advice if needed.
Contrary to standard commercial disputes, corporate law disputes, such as in particular disputes that regard the existence or dissolution of the company or the validity or legality of the resolutions of its governing bodies, may include various parties and affect further persons and thus, by their very nature, pose a particular challenge to the procedural management of a case. The Supplemental Swiss Rules introduce a set of additional rules to account for these specificities and ensure that corporate law disputes can be resolved efficiently and effectively.
The Supplemental Swiss Rules also implement the new statutory requirements that apply to those corporate law disputes which can lead to an arbitral award having direct legal effects towards persons other than the parties (“Affected Persons”). These regulations include provisions on the timely notification of such Affected Persons about the commencement and the termination of the arbitration as well as the possibility for such Affected Persons to submit comments on the appointment of the arbitral tribunal and / or participate in the arbitration proceedings in a capacity other than an additional party.
Finally, the Supplemental Swiss Rules amplify the arbitral tribunal’s discretion in dealing with requests for interim and emergency relief by clarifying that the arbitral tribunal may defer, or refrain from rendering, its decision on such a request if a parallel request is pending before a judicial authority, which, in the arbitral tribunal’s opinion, might be more efficient and/or effective in granting the requested relief.