INTERNATIONAL AND DOMESTIC ARBITRATION IN SWITZERLAND

1 Chapter 1 Introduction § 1 ARBITRATION AS A PARTICULAR FORM OF DISPUTE RESOLUTION I. The concept of arbitration Arbitration stands in contrast to state court proceedings, i.e. the jurisdiction of the ordinary courts (herein also referred to as “ state courts ”) . Arbitral tribunals act in place of state courts. They have the power to issue final, binding and enforceable decisions on disputes of private or public law between private parties and/or public authorities. Arbitral tribunals are composed of private persons appointed by agreement of the parties. 1 This definition of arbitration is based on the following features: Arbitration is based on private agreement. 2 This agreement usually takes the form of a contract between the parties involved (see paras 277 – 635). It may also arise frommembership or participation in a legal entity whose articles of incorporation provide for arbitration as a method of dispute resolution (see paras 465 – 469). With certain limitations, arbitration may even arise from unilateral legal acts (see paras 470 – 476). When arbitration panels are established by law, they do not qualify as arbitral tribunals, even though they are sometimes (and incorrectly) referred to as such. 3 Any person, whether a natural or legal person or public authority, may be a party to arbitration. As in the private sector, governments and state- 1 Similarly, e.g. Kaufmann-Kohler and Rigozzi, N 1.16. 2 BGE 137 III 37 E.2.2.1. 3 See e.g. Rüede and Hadenfeldt, Supplement to the 2nd edition, 11. See also ZR 2005, 181 – 184. 1 2 3 4 5