Schellenberg Wittmer: Procedural order requalified as interim award subject to immediate challenge
In a German-language decision of 30 April 2018 (which will not be published in the official court reporter), the Swiss Supreme Court held that a motion to set aside an international award was manifestly inadmissible pursuant to Article 108(1)(a) of the Swiss Supreme Court Act. The Swiss Supreme Court found that it is now established case law that an interim award on jurisdiction or on the composition of the arbitral tribunal has to be challenged within 30 days of its notification. Such interim decisions cannot be challenged together with the final award.
In this case, the Swiss Supreme Court considered that despite being entitled "Procedural Order" (Verfügung), the decision of an arbitral tribunal constituted under the DIS Arbitration Rules on the impartiality of two of its members, was an interim award. By failing to challenge it pursuant to Article 190(3) Swiss Private International Law Act within 30 days of notification, the petitioner was precluded from challenging this decision together with the final award.
The decision is noteworthy because it was taken without hearing the respondent party despite its draconian consequences. Further, it indicates the court's willingness to apply substance over form by, in this case, requalifying a decision labelled "procedural order" into an "interim award".
Further, the decision should serve as a warning to parties to carefully scrutinise all decisions taken by an arbitral tribunal regardless of how they are presented, to ensure that should they wish to challenge the decision, they do so within the prescribed time limits. (Decision 4A_136/2018 (Swiss Supreme Court).)
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