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Arbitration is the most popular choice for dispute resolution in multinational commercial agreements.[1] At times, relevant arbitration clauses provide that arbitration proceedings can only be initiated after a failed attempt at an alternative dispute resolution (“ADR”). There is a broad variety of specific ADR mechanisms provided for in such multitier dispute resolution clauses. Nevertheless, a matter that commonly arises in disputes subject to such multitier dispute resolution clauses is the mandatory nature of such pre-arbitral…

In a decision published on 1st March 2021, the Swiss Federal Supreme Court (“SFSC”) ruled on the arbitrability of a claim and the corresponding enforceability of an international arbitral award in the light of bankruptcy proceedings filed against the respondent in Switzerland (case no. 5A_910/2019 (in German)). Factual background The dispute at stake originated from an arbitral award of the London Court of International Arbitration (“LCIA”). Therein, the claimant (and subsequently defendant before the SFSC)…

In its decision published 6 January 2021, the Swiss Federal Supreme Court (“SFSC”) dismissed a challenge because in its view, the arbitrator had not violated public policy by finding in favour of a company that refused to pay commissions under an agency contract obtained through fraudulent behaviour (case no. 4A_346/2020 (in French)). Factual background The reported dispute originates from agency agreements between a principal company C and two agents, company A as well as its…

In its decision published 2 November 2020, the Swiss Federal Supreme Court (“SFSC”) upheld an arbitral award referring to the widely recognized principle in international arbitration of ‘kompetenz-kompetenz’ (case no. 4A_461/2019 (in German)). Factual background The reported dispute originates from a construction agreement between the State of Lybia and a Turkish company. The Turkish company attempted to obtain payment of the outstanding invoices by the State of Lybia. Subsequent to numerous disagreements, the parties entered…