Vers une renonciation tacite au recours contre une sentence arbitrale (art. 192 al. 1 LDIP) ? (French)

In a French-language decision dated 18 January 2017 (ATF 143 III 55), the Swiss Federal Tribunal assessed whether it should review the merits of a motion to set aside an arbitral award. The court decided against reviewing the merits of appellant's motion as it considered its conduct contradictory and, hence, abusive. The appellant had instituted the arbitration and demanded that the respondent be ordered to pay a contractual penalty, as allegedly set forth in a share purchase agreement, which also contained an arbitration clause. The respondent raised the plea of lack of jurisdiction, arguing that it had never agreed to the agreement and that the signature of its representative had been forged. Expert opinions sought by the sole arbitrator suggested that the signature had indeed been forged. Thereupon, the respondent accepted the sole arbitrator's jurisdiction and demanded that the claim be dismissed. Ultimately, the sole arbitrator dismissed the claim. Upon appeal, the Swiss Federal Tribunal was confronted with the issue that the arbitration agreement contained a waiver of appeal. With respect to this waiver, the appellant submitted that it was not bound by it as it was invalid for lack of consent by the respondent. The Swiss Federal Tribunal rejected the appellant's argument and stressed that the appellant had claimed throughout the arbitral proceedings that the purchase contract (including the arbitration agreement) was valid. Therefore, the Swiss Federal Tribunal concluded it was contradictory for the appellant to claim in the set-aside proceedings that the waiver agreement, which formed part of the arbitration agreement, was invalid (venire contra factum proprium). The authors do not fully agree with the reasoning of the Swiss Federal Tribunal, although they approve the result of the decision. While the Swiss Federal Tribunal, in their view, correctly started its analysis by examining the admissibility of the appeal with regard to the existence of a waiver agreement, it then took a problematic shortcut. It refused, on the ground of the appellant's bad faith, to assess whether the respondent's withdrawal of its plea of lack of jurisdiction (Einlassung) also impacted on the waiver agreement. This is regrettable because the Tribunal has thus deprived itself, inter alia, of the opportunity to clarify the effects of abandoning a plea of lack of jurisdiction (of the arbitral tribunal). [ABSTRACT FROM AUTHOR]

Copyright of ASA Bulletin is the property of Kluwer Law International and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)