| |
 |
Question: |
|
What types of disputes
are arbitrable (suitable for arbitration) and may be submitted
to an arbitral tribunal for decision?
|
| Answer:
|
|
In domestic arbitration,
rights and legal relationships under dispute may only be submitted
to an SGO arbitration tribunal for settlement and a legally
binding decision if the parties are free to dispose over them.
Thus, all legal disputes concerning contractual claims are
basically arbitrable. Not arbitrable, on the other hand, are
all proceedings concerning civil state and family law (e.g.
divorce petitions, determination of a person's inheritance
claim, etc.), recovery-of-debt and bankruptcy disputes under
summary and expedited procedures, as well as criminal and
all sections of public law (administration and constitutional
law). Finally, revocation actions (Art. 83 Debt Enforcement
and Bankruptcy Law) and arrest prosecution actions (Art. 287
Enforcement and Bankruptcy Law) are also exempt from domestic
arbitration.
|
Question: |
|
What is the scope of arbitrability
in international arbitration?
|
Answer: |
|
Since the scope
of arbitrability is wider in international arbitration, any
proprietary claim may become the object of arbitration proceedings
(Art. 177 (1) Federal Private International Law Act PIL).
In other words, free disposability, which would have to be
evaluated according to the applicable law, is not a precondition
in such cases.
|
|
|
Question: |
|
When do we talk about international
arbitration and why is this significant?
|
Answer: |
|
According to
the Federal Private International Law Act of 18th December
1987 (PIL, SR 291), an arbitral tribunal with seat in Switzerland
is considered international if, at the time when the arbitration
agreement is concluded, at least one party has its domicile,
seat or habitual residence abroad (Art. 176 (2) PIL. The distinction
whether proceedings deal with a purely domestic subject matter
(so-called "domestic arbitration") or with international
matters within the meaning of PIL, is important. Each case
has different appeal options, a different range of arbitrable
objects and differences concerning the authority to order
provisional measures. The SGO Rules regulate when in the course
of the proceedings these distinctions must be observed, i.e.
they are applicable both in domestic and in international
arbitration.
|
Question: |
|
Is there any action I can take
against a biased arbitrator?
|
Answer: |
|
Of course there
is. It is true that the arbitral tribunal in SGO arbitration
proceedings is appointed by the SGO itself, or rather by the
head of the preliminary proceedings, and thus without the
parties' cooperation. The parties do however have the right,
if they have evidence that make an arbitrator appear biased
vis-à-vis the dispute to be settled, to take action
and to demand the replacement of the biased arbitrator. The
reasons for rejecting an arbitrator, the rejection proceedings
as well as the entire procedure for appointing the arbitrators
of a particular arbitral tribunal are regulated in detail
by the SGO Rules. |
|
|
Question: |
|
How to proceed if an existing contract
has no arbitration clause but a dispute is nonetheless to
be submitted to the SGO for arbitration?
|
Answer: |
|
In an ideal world,
the parties concluding a contract would anticipate the possibility
of a legal dispute in the future and would thus incorporate
the SGO Arbitration Clause in their contract. Otherwise, the
SGO can only become active if both parties agree to submit
an existing dispute to the SGO for consideration and decision.
In order to do so, the parties must agree in writing to refer
the dispute in question to the SGO. This written agreement
is called an "Arbitration Agreement". |
| |
|
|
|
|
|
| |
Copyright
© 2005-2009, SGO Swiss Permanent Organisation of Arbitration,
Uraniastrasse 12, CH–8001 Zurich / Switzerland |
|
webmaster@sgo-zh.ch
/ Webdesign: smart-and-quick.ch |
|
|
|