INTERNATIONAL AND DOMESTIC ARBITRATION IN SWITZERLAND

§ 1 Arbitration as a particular form of dispute resolution 5 (1) The parties may determine the arbitral procedure, directly or by reference to arbitration rules; they may also submit it to a procedural law of their choice. (2) If the parties have not determined the procedure, the arbitral tribunal shall determine it to the extent necessary, either directly or by reference to a law or to arbitration rules. (3) Regardless of the chosen procedure, the arbitral tribunal shall ensure equal treatment of the parties and their right to be heard in adversarial proceedings. The arbitral tribunal can and should therefore apply the procedural rules established or determined by the parties, as long as they do not violate fundamental procedural guarantees. National law can sometimes be useful as a general guideline for the proceedings before the arbitral tribunal. In addition, national law is important when, for example, referring parties to arbitration, appointing arbitrators, challenging, revoking or replacing an arbitrator, ordering interim or conservatory measures or taking evidence. National law is also applicable in subsequent setting aside or recognition and enforcement proceedings. The question of which national law is applicable to the various stages of arbitration is complex. At this point, only the most fundamental conflict of laws rules will be mentioned. The arbitral procedure is governed by the arbitration law of the country in which the arbitral tribunal has its seat ( lex arbitri ). The recognition and enforcement procedure, on the other hand, is governed by the law of the country in which recognition and enforcement of an arbitral award is sought (this also includes the international conventions ratified by that country, above all the New York Convention of 1958). National arbitration laws vary from country to country, although they show a trend towards convergence. In part, this is the result of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (NYC). Another factor is the UNCITRAL Model Law on International Commercial Arbitration of 21 June 1985 (as amended on 7 June 2006), which provides a comprehensive set of rules – from the conclusion of the arbitration agreement to the enforcement of the arbitral award. UNCITRAL ’s approach was to create a comprehensive set of rules that would find worldwide acceptance and could be successively adopted by national legislatures. 10 Since 1985, the Model Law has been directly adopted in numerous national legal systems. In addition, it has significantly 10 Berger, 34 – 35; Schwab and Walter, 41 N 7. 17 18 19 20