Abstrakt

On March 1, 2011, the Swiss Federal Tribunal issued a judgment relating to the validity of a contractual exclusion of the right to seek annulment of an arbitral award. Such waiver is possible under Article 192 of the Swiss PILA. The case concerned an arbitration agreement governed by Swiss law, and providing for Geneva as the place of arbitration. In the arbitration agreement, parties, among other things, waived the right to challenge any arbitral award through set aside proceedings. The article summarizes the Federal Tribunal’s judgment and presents the evolution of its practice based on Article 192 PILA over the past few years. It also recalls the European Court of Human Rights’ case law related to waiver of rights guaranteed by the European Convention of Human Rights, and puts it into perspective regarding the validity of a waiver of setting aside proceedings, especially concerning interpretation of parties’ intention to waive their rights. Finally, it evokes criticism regarding the possibility under Swiss law to waive set aside proceedings. The article concludes by arguing in favor of allowing waivers of set aside proceedings, provided that state courts conduct a careful review thereof to ensure that parties’ intention was correctly understood.