On 1 January 2023, a new Article 697n of the Swiss Code of Obligations ("CO") will enter into force, expressly allowing Swiss companies to include arbitration clauses for corporate law disputes in their articles of association. The articles of association may regulate the specifics of the arbitration proceedings, in particular by referring to institutional rules of arbitration, and shall ensure that "persons who may be directly affected by the legal effects of the arbitral award" ("Affected Persons") are informed about the commencement and termination of the proceedings and given an adequate opportunity to participate in the arbitration proceedings (Article 697n(3) CO).
As a matter of law, arbitrations based on statutory arbitration clauses must be seated in Switzerland and are governed by the provisions on domestic arbitration contained in Part 3 of the Swiss Code of Civil Procedure Code ("CPC"), to the express exclusion of the provisions governing international arbitration proceedings in Chapter 12 of the Swiss Private International Law Act (Article 697n(2) CO).
In parallel to this new statutory provision, the Swiss Arbitration Centre ("Centre") will put into effect "Supplemental Swiss Rules for Corporate Law Disputes" (the "Supplemental Swiss Rules"), which account for the specificities of corporate law disputes while ensuring that disputes are resolved efficiently and in compliance with statutory requirements.
The Supplemental Swiss Rules were published by the Centre together with an Explanatory Note for further background and guidance on the use of the new rules. The main points can be summarized as follows:
The Supplemental Swiss Rules apply to Swiss Joint-Stock Companies, Swiss Partnerships Limited by Shares and Swiss Limited Liability Companies. However, other entities such as associations or cooperatives may choose, and expressly state in their statutory arbitration clause, that the Supplemental Swiss Rules shall apply to their corporate law disputes. Whereas the Supplemental Swiss Rules apply to any "corporate law dispute" within the meaning of Article 697n CO, a company is free to limit the scope of application to specific types of disputes.
The Supplemental Swiss Rules provide a Model Statutory Arbitration Clause which companies may choose to incorporate into their articles of association. It is based on the Model Arbitration Clause of the Swiss Rules but has been adapted to account for the specificities of corporate law disputes pursuant to the revised company law. This includes, for example, (optional) changes to the default rule regarding the appointment of the arbitrator(s), the allocation of the costs of the arbitration, the exclusion of matters subject to summary proceedings under Article 250(c) of the CPC or the possible exclusion of the emergency relief proceedings pursuant to Article 43 of the Swiss Rules.
One of the main aims of the Supplemental Swiss Rules is the implementation of the requirements pursuant to Article 697n(3) CO, that is, to ensure that Affected Persons are notified timely about the commencement and the termination of the arbitration and may comment on certain procedural steps. Corporate law disputes, by their very nature, may involve a number of actors. The Swiss Rules already provide for various possibilities to involve additional parties or third persons in an arbitration. While these provisions are apt also for the conduct of arbitrations over corporate law disputes, the Supplemental Swiss Rules contain additional provisions concerning the inclusion of Affected Persons in the arbitral process so as to ensure that such disputes will be resolved efficiently and effectively even if multiple parties are involved.
Finally, given that effective interim relief may be of particular concern in the context of corporate law disputes, the Supplemental Swiss Rules contain provisions that adapt the rules on interim and emergency relief under the Swiss Rules. In particular, they confirm the arbitrators' broad discretion in dealing with requests for interim or emergency relief. Specifically, the arbitral tribunal or emergency arbitrator may defer, or refrain from rendering, a decision on a request for interim relief if it deems it more appropriate that a judicial authority, which has been seized with a parallel request, will decide first, e.g. because the parallel proceedings seem more efficient or effective. This principle applies even if the request to the judicial authority was made after the arbitral tribunal was seized with the corresponding request.
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