INTERNATIONAL AND DOMESTIC ARBITRATION IN SWITZERLAND

Chapter 1 Introduction 2 controlled public or private entities may submit to arbitration as a means of dispute resolution (see paras 369 – 388). The arbitral tribunal is composed of one or more arbitrators. The arbitrators are chosen by the parties either directly ( e.g. by agreement on a sole arbitrator) or indirectly ( e.g. by agreement on an appointing authority or, in the absence of such, by the competent state court at the seat of the arbitration). The appointment of an arbitral tribunal is a voluntary act, not the result of specific legal provisions. 4 Arbitrators perform the functions assigned to them by the parties as private individuals, not as representatives of the government or state judiciary. 5 This applies even if the arbitrators are appointed by the juge d’appui or if the parties have agreed that a state court should act as the appointing authority (see paras 807 – 810). Arbitral tribunals primarily resolve disputes of private law. However, public law disputes can also be the subject of arbitration, 6 for example disputes arising from administrative contracts or investment treaties. In all cases, however, the disputed claim must meet the requirement of arbitrability (see paras 181 – 276). While arbitration is built on consent and arbitrators act as private individuals, arbitration is unique in that arbitral tribunals have the power to make a final and binding decision on the dispute before them. This power is based on statutory authorisation granted to the arbitral tribunal by the applicable lex arbitri (see paras 11 – 15, 70 – 119). Furthermore, it results from the fact that states are willing to recognise and enforce domestic and foreign arbitral awards. Arbitral tribunals are thus on the same footing as state courts when it comes to the power to make final, binding and enforceable decisions. 7 II. The sources of arbitration Arbitration is a method of dispute resolution that the parties can largely determine as they see fit. However, they can only make use of this freedom within the framework of a (functioning) legal system. If arbitration were not tied to a system of norms, it would completely depend on the cooperation of the parties involved. In this case, the 4 Poudret and Besson, N 8. 5 Rüede and Hadenfeldt, 3; Poudret and Besson, N 7 – 8. 6 Lalive, Poudret and Reymond, Art.1 N 1.2; Jolidon, Art.5 N 421 lit. i; Göksu, N 23. 7 Poudret and Besson, N 11; Rüede and Hadenfeldt, 4. 6 7 8 9 10