To put it simply, arbitral tribunals are private
courts. Thanks to the sovereignty
granted to them by the Swiss constitution, they are
able to hand down binding decisions in the same way as ordinary
courts. Consequently, an award between the parties has the
same effect as a legally binding court
order issued by an ordinary court.
Due to their sovereign function vis-à-vis conflicts
under private law, arbitration tribunals have become an
element of the state court organisation
("privatised jurisdiction"). Thus, the "products"
of an arbitration court (settlement, award) have the same
material legal effect as a settlement or order made by a
public court. From the point of view of enforceability,
they thus constitute a definitive proof
of claim (Art. 80 f. Federal Statute on Debt Enforcement
and Bankruptcy). Like an ordinary judge, an arbitrator is
therefore obliged to protect the principles of the rule
of law and to comply at all times with basic procedural
rights, i.e. the rule of due process
of law, the rule of impartiality,
as well as the rule of equal treatment
of the parties.
Besides these formal-authoritative aspects, arbitral tribunals
also have , which, for the
most part, the traditional judicial bodies lack and which
- if applied correctly - have the power
to defuse the most bitter of conflicts. The parties
benefit from, for instance, an unofficial yet professional
atmosphere facilitating the settlement
negotiations at every stage of the arbitration
- perhaps even enabling them to happen at all. Another one
of its strengths is the manner in which the decision-making
process concentrates on creating win-win
solutions. An arbitral tribunal is flexible enough
in its procedural strategy to make allowances
for the peculiarities of individual cases and can
thus achieve long-term conflict resolution in a remarkably
short space of time.
The advantages are impressive: If a contract has an ,
- and thus the procedure for settling a conflict - are known
to both parties. The time and money
needed for settling the dispute are calculable. Since
the arbitrators are appointed by the SGO, i.e. by a neutral
body, the parties cannot be influenced, and the arbitrators'
impartiality is thus preserved.