INTERNATIONAL AND DOMESTIC ARBITRATION IN SWITZERLAND

§ 1 Arbitration as a particular form of dispute resolution 3 arbitral procedure could regularly be obstructed or thwarted. With a view to the principle of party autonomy, arbitration therefore aims to detach the procedure as much as possible from local or national laws. At the same time, however, the arbitration process is indeed dependent on a reliable (local) legal framework as soon as a party refuses to cooperate, so that the support of state courts is necessary to keep the proceedings on track. This reciprocity between party autonomy on the one hand and the law regulating arbitration on the other reveals which norms govern arbitration and how they relate to each other hierarchically. This theme will recur in several of the following Chapters of this book. 1. Priority of party autonomy The principle of party autonomy is the most salient feature of arbitration. First of all, the jurisdiction of the arbitral tribunal is based solely on the will of the parties, whereas any state court, even if the forum is chosen by the parties, derives its jurisdiction from national or international law. In addition, the parties largely determine the composition of the arbitral tribunal, the seat of the arbitration, the applicable arbitral procedure, the language of the proceedings and numerous other aspects. However, there are limits to the parties’ freedom. In particular, the concept of arbitrability and the scope of certain fundamental procedural guarantees are not at the free disposition of the parties (on the mandatory provisions of the Swiss lex arbitri , see para.605). 2. Arbitration rules Only rarely do the parties use the extensive freedom afforded to them to tailor the procedure entirely to their needs ( ad hoc arbitration). Rather, they resort to already existing models and arbitration rules, which they declare to be an integral part of their arbitration agreement. By such reference, the parties agree on a pre-existing set of rules that provide solutions to common problems, such as a party’s failure to designate an arbitrator or the parties ’ failure to agree on the seat of the arbitration or the language of the proceedings. Arbitration rules are typically instruments created by organisations offering arbitration services (institutional arbitration), such as the International Court of Arbitration of the International Chamber of 11 12 13 14