Section 5 Foreign Decisions |
Art. 149
1 Foreign decisions relating to a claim under the law of obligations are recognised in Switzerland:
2 They are also recognised:
86 Amended by Art. 3 No 3 of the FD of 11 Dec. 2009 (Approval and Implementation of the Lugano Convention), in force since 1 Jan. 2011 (AS 2010 5601; BBl 2009 1777). 87 Amended by Annex No II 3 of the Nuclear Energy Liability Act of 13 June 2008, in force since 1 Jan. 2022, published 27 Jan. 2022 (AS 2022 43; BBl 2007 5397). |
Chapter 9a Trusts88
88 Inserted by Art. 2 of the FD of 20 Dec. 2006 on the Approval and Implementation of the Hague Convention on the Law Applicable to Trusts and on their Recognition, in force since 1 July 2007 (AS 2007 2849; BBl 2006551). |
Art. 149a I. Definition The term trust refers to trusts created voluntarily in the sense of the Hague Convention of 1 July 198589 on the Law Applicable to Trusts and on their Recognition, irrespective of whether they are evidenced in writing pursuant to Article 3 of the Convention. |
Art. 149b
II. Jurisdiction 1 In matters concerning trust law, the choice of forum contained in the trust deed shall prevail. The choice of forum or the authorisation contained in the trust deed to choose the forum only has to be followed if it is made in writing or in any other form which permits it to be evidenced by text. Unless otherwise provided, a choice of forum is exclusive. Article 5 paragraph 2 applies by analogy. 2 The chosen court may not decline jurisdiction:
3 Where there is no valid choice of forum, or if the choice of forum is not exclusive, jurisdiction shall lie with the Swiss courts:
4 Disputes regarding liability arising out of the public issue of equity or debt securities may also be brought before the Swiss courts at the place of issue. This jurisdiction may not be excluded by a choice of forum. |
Art. 149c
III. Applicable law 1 The law applicable to trusts is governed by the Hague Convention of 1 July 198590 on the Law Applicable to Trusts and on their Recognition. 2 The law designated by the Convention shall also apply when the Convention does not apply pursuant to its Article 5 or when a state is not bound to recognise a trust pursuant to Article 13 of the Convention. |
Art. 149d
IV. Special rules concerning publicity 1 Where the assets of the trust are registered in the name of the trustee in the land register, the ships register or the aircraft register, reference to the trust relationship can be made by adding a note. 2 Trust relationships affecting intellectual property rights registered in Switzerland shall be recorded on request in the relevant register. 3 A trust relationship that is not noted or recorded is not enforceable against third parties acting in good faith. Art. 149e V. Foreign decisions 1 Foreign decisions on matters concerning trust law are recognised in Switzerland: a. if they were rendered by a court that was validly designated pursuant to Article 149b paragraph 1; b. if they were rendered in the state in which the defendant was domiciled, habitually resident or had their establishment; c. if they were rendered in the state in which the trust had its seat; d. if they were rendered in the state whose law applies to the trust; or e. if they are recognised in the state in which the trust has its seat, provided the defendant was not domiciled in Switzerland. 2 Article 165 paragraph 2 applies by analogy to foreign decisions relating to claims regarding public issues of equity or debt securities based on prospectuses, circulars or similar publications. |
Chapter 10 Companies |
Art. 150
I. Definitions 1 For the purposes of this Act, a company is any organised association of persons and any organised unit of assets. 2 Simple partnerships that have not provided themselves with an organisation are governed by the provisions of this Act relating to the law applicable to contracts (Art. 116 et seq.). |
Art. 151
II. Jurisdiction 1. In general 1 In disputes concerning company law, the Swiss courts at the seat of the company have jurisdiction to hear actions against the company, its shareholders or members, or persons liable under company law. 2 Actions against shareholders or members or against persons liable under company law may also be brought before the Swiss courts at the domicile or, in the absence of a domicile, at the habitual residence of the defendant. 3 Disputes regarding liability arising out of the public issue of equity or debt securities may also be brought before the Swiss courts at the place of issue. This jurisdiction may not be excluded by a choice of forum. 4 ...91 91 Inserted by Annex 1 No II 18 of the Civil Procedure Code of 19 Dec. 2008 (AS 2010 1739; BBl 2006 7221). Repealed by No II 2 of the FA of 28 Sept. 2012, with effect from 1 May 2013 (AS 2013 1103; BBl 2011 6873). |
Art. 152
2. Liability for a foreign company The following courts have jurisdiction to hear actions against a person liable under Article 159 or against the foreign company for which such person is acting:
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Art. 154
III. Applicable law 1. In general 1 Companies are governed by the law of the state under which they are organised, provided they fulfil the publicity or registration requirements of that law or, where such requirements do not exist, if they have organised themselves pursuant to the law of that state. 2 A company which does not fulfil these requirements is governed by the law of the state in which it is administered in fact. |
Art. 155
2. Scope of the applicable law Subject to Articles 156 to 161, the law applicable to a company governs in particular:
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Art. 156
IV. Special connecting factors 1. Claims arising from public issues of equity or debt securities Claims regarding public issues of equity or debt securities based on prospectuses, circulars or similar publications may be based on either the law applicable to the company or the law of the state where the instruments were issued. |
Art. 157
2. Protection of the name and business name 1 The protection of the name or business name of companies registered in the Swiss commercial register against infringements in Switzerland is governed by Swiss law. 2 The protection of the name or business name of a company which is not registered in the Swiss commercial register is governed by the law applicable to unfair competition (Art. 136) or the law applicable to infringements of personality rights (Art. 132, 133 and 139). |
Art. 158
3. Restrictions of the power of representation A company may not invoke restrictions of the power of representation of a body or a representative that are unknown in the law of the state where the other party has its establishment or habitual residence, unless the other party knew or should have known of these restrictions. |
Art. 160
V. Branches of foreign companies in Switzerland 1 A company which has its seat abroad may have a branch in Switzerland. The branch is governed by Swiss law. 2 The power of representation of the branch is governed by Swiss law. At least one of the persons authorised to represent the branch must be domiciled in Switzerland and registered in the Swiss commercial register. 3 The Federal Council adopts the implementing regulations concerning mandatory registration in the commercial register. |
Art. 161
VI. Transfer, merger, demerger and transfer of assets and liabilities 1. Transfer of a company from abroad to Switzerland a. In general 1 A foreign company may subject itself to Swiss law without being liquidated or re-established, provided this is allowed under the foreign law governing the company. The company must meet the requirements of its foreign law and must be able to adapt itself to one of the forms of organisation of Swiss law. 2 The Federal Council may authorise a company to subject itself to Swiss law even where the requirements of its foreign law are not met, particularly if significant Swiss interests are at stake. |
Art. 162
b. Effective date 1 A company that is required under Swiss law to register in the commercial register is governed by Swiss law as soon as it proves that the centre of its business activities has been transferred to Switzerland and that it has adapted itself to one of the forms of organisation of Swiss law. 2 A company that is not required under Swiss law to register in the commercial register is governed by Swiss law as soon as its intent to be governed by Swiss law appears clearly, it has a sufficient connection with Switzerland, and it has adapted itself to one of the forms of organisation of Swiss law. 3 Before its registration in the commercial register, a company with a share capital must prove that its capital is covered in accordance with Swiss law by producing a report issued by a licensed audit expert within the meaning of the Auditor Oversight Act of 16 December 200594.95 95Amended by Annex No 4 of the FA of 16 Dec. 2005 (LLC law and amendments to the Laws on Companies, Cooperatives, the Commercial Register and Commercial Names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969). |
Art. 16396
2. Transfer of a company from Switzerland abroad 1 A Swiss company may subject itself to a foreign law without being liquidated or re-established, provided it meets the requirements of Swiss law and continues to exist under the foreign law. 2 The creditors must be invited to file their claims by public notification announcing the forthcoming change of the legal status of the company. Article 46 of the Mergers Act of 3 October 200397 applies by analogy. 3 The provisions relating to protective measures in the event of international conflicts within the meaning of Article 61 of the National Economic Supply Act of 8 October 198298 are reserved. 96Amended by Annex No 4 of the Mergers Act of 3 Oct. 2003, in force since 1 July 2004 (AS 20042617; BBl 20004337). 98[AS 1983 931; 1992 288Annex No 24; 1995 1018, 1794; 1996 3371Annex 2 No 1; 2001 1439; 2006 2197Annex No 48; 2010 1881Annex 1 No II 18; 2012 3655No I 15. AS 2017 3097Annex 2 No I]. Now: National Economic Supply Act of 17 June 2016 (SR 531). |
Art. 163a99
3. Merger a. Merger from abroad to Switzerland 1 A Swiss company may acquire a foreign company (absorption by immigration) or form a new Swiss company with a foreign company (combination by immigration), provided the law governing the foreign company permits such a merger and all the requirements of that law are met. 2 All other aspects of the merger are governed by Swiss Law. 99Inserted by Annex No 4 of the Mergers Act of 3 Oct. 2003, in force since 1 July 2004 (AS 20042617; BBl 20004337). |
Art. 163b100
b. Merger from Switzerland abroad 1 A foreign company may acquire a Swiss company (absorption by emigration) or form a new foreign company with a Swiss company (combination by emigration), provided the Swiss company can prove that:
2 The Swiss company must comply with all provisions of Swiss law applicable to the transferring company. 3 The creditors must be invited to file their claims by public notification announcing the forthcoming merger. Article 46 of the Mergers Act of 3 October 2003101 applies by analogy. 4 All other aspects of the merger are governed by the law applicable to the foreign acquiring company. 100Inserted by Annex No 4 of the Mergers Act of 3 Oct. 2003, in force since 1 July 2004 (AS 20042617; BBl 20004337). |
Art. 163c102
c. Merger agreement 1 The merger agreement must comply with the mandatory company law provisions of the laws governing the companies involved, including the provisions concerning form. 2 All other aspects of the merger agreement are governed by the law chosen by the parties. In the absence of a choice of law, the merger agreement is governed by the law of the state with which the agreement has the closest connection. Such a connection is presumed to exist with the state whose law governs the acquiring company. 102Inserted by Annex No 4 of the Mergers Act of 3 Oct. 2003, in force since 1 July 2004 (AS 20042617; BBl 20004337). |
Art. 163d103
4. Demerger and transfer of assets and liabilities 1 The provisions of this Act relating to mergers of companies apply by analogy to demergers of companies and to transfers of assets and liabilities involving a Swiss company and a foreign company. Article 163b paragraph 3 does not apply to the transfer of assets and liabilities. 2 All other aspects of demergers and transfers of assets and liabilities are governed by the law applicable to the company being demerged or to the company transferring its assets and liabilities to another legal entity. 3 The law governing the company being demerged is presumed to apply to the division agreement under the conditions of Article 163c paragraph 2. The same applies, by analogy, to the transfer of assets and liabilities agreement. 103Inserted by Annex No 4 of the Mergers Act of 3 Oct. 2003, in force since 1 July 2004 (AS 20042617; BBl 20004337). |
Art. 164104
5. Common provisions a. Deregistration from the commercial register 1 The registration of a company in the Swiss commercial register may be deleted only if a report drawn up by a licensed audit expert confirms that the claims of the creditors have either been secured or satisfied in accordance with Article 46 of the Mergers Act of 3 October 2003105, or that the creditors have agreed to the cancellation of the registration.106 2 If a foreign company acquires a Swiss company, or if it forms a new foreign company with a Swiss company, or if a Swiss company is demerged into foreign companies, the following additional requirements apply:
104Amended by Annex No 4 of the Mergers Act of 3 Oct. 2003, in force since 1 July 2004 (AS 20042617; BBl 20004337). 106 Amended by Annex No 4 of the FA of 16 Dec. 2005 (LLC law and amendments to the Laws on Companies, Cooperatives, the Commercial Register and Commercial Names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969). 107 Amended by Annex No 4 of the FA of 16 Dec. 2005 (LLC law and amendments to the Laws on Companies, Cooperatives, the Commercial Register and Commercial Names), in force since 1 Jan. 2008 (AS 2007 4791; BBl 2002 3148, 2004 3969). |
Art. 164a108
b. Place of debt enforcement and place of jurisdiction 1 If a foreign company acquires a Swiss company or forms a new foreign company with a Swiss company, or if a Swiss company is demerged into foreign companies, an action requesting the examination of the equity or membership rights pursuant to Article 105 of the Mergers Act of 3 October 2003109 may also be brought before the courts at the Swiss seat of the transferring entity. 2 The place of debt enforcement and the place of jurisdiction in Switzerland remain valid for so long as the creditors and the shareholders have not been satisfied or their claims secured. 108Inserted by Annex No 4 of the Mergers Act of 3 Oct. 2003, in force since 1 July 2004 (AS 20042617; BBl 20004337). |
Art. 164b110
c. Transfer, merger, demerger and transfer of assets and liabilities abroad The submission of a foreign company to another foreign law as well as a merger, a demerger or a transfer of assets and liabilities between foreign companies are recognised in Switzerland, provided it is valid pursuant to the foreign laws concerned. 110Inserted by Annex No 4 of the Mergers Act of 3 Oct. 2003, in force since 1 July 2004 (AS 20042617; BBl 20004337). |
Art. 165
VII. Foreign decisions 1 Foreign decisions relating to claims concerning company law are recognised in Switzerland:
2 Foreign decisions relating to claims concerning public issues of equity or debt securities based on prospectuses, circulars or similar publications are recognised in Switzerland if they were rendered in the state in which the equity or debt securities were issued, provided the defendant was not domiciled in Switzerland. |
Chapter 11 Bankruptcy and Composition |
Art. 166112
I. Recognition 1 A foreign bankruptcy decree shall be recognised in Switzerland on application of the bankruptcy administrator, the debtor or a creditor if:
2 If the debtor has a branch in Switzerland, the procedure provided for in Article 50 paragraph 1 of the Federal Act of 11 April 1889113 on Debt Enforcement and Bankruptcy (DEBA) is permitted until the publication of the decision on recognition in accordance with Article 169 of this Act. 3 Where proceedings under Article 50 paragraph 1 DEBA have already been opened and the deadline under Article 250 DEBA has not expired, these proceedings shall be abandoned following recognition of the foreign bankruptcy decree. Claims already filed shall be included in the schedule of claims for the auxiliary bankruptcy proceedings in accordance with Article 172. The accrued procedural costs are deferred to the auxiliary bankruptcy proceedings. 112 Amended by No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). |
Art. 167
II. Procedure 1. Jurisdiction 1 Where the debtor has a branch in Switzerland registered in the commercial register, the application for the recognition of a foreign bankruptcy decree must be filed in the court at the location of its seat. In all other cases, the application must be filed in the court at the location of the assets in Switzerland. Article 29 applies by analogy.114 2 Where the debtor has two or more branches or if there are assets in more than one location, the court where an application was filed first has exclusive jurisdiction.115 3 The claims of the bankrupt debtor are deemed to be located at the domicile of his or her debtor. 114 Amended by No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). 115 Amended by No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). |
Art. 168
2. Conservatory measures As from the filing of the application for recognition of the foreign bankruptcy decree, the court may, at the request of the applicant, order conservatory measures as provided for in Articles 162 to 165 and 170 DEBA116,117. 117Term in accordance with No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). This has been amended throughout the text. |
Art. 169
3. Publication 1 The decision on the recognition of a foreign bankruptcy decree shall be published. 2 The decision shall be communicated to the debt enforcement and bankruptcy office, the land registry, and the commercial registry at the place where the assets are located and, where appropriate, to the Swiss Federal Institute of Intellectual Property118. The same applies to decisions concluding or staying the auxiliarybankruptcy proceedings, the decision to revoke the bankruptcy,and the decision to abstain from auxiliary bankruptcy proceedings.119 118 Name in accordance with an unpublished FCD of 19 Dec. 1997. 119 Sentence amended by No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). |
Art. 170
III. Legal effects 1. In general 1 Unless otherwise provided in this Act, the recognition of a foreign bankruptcy decree subjects the debtor’s assets located in Switzerland to the legal consequences of bankruptcy according to Swiss law. 2 The limitation periods under Swiss law start to run from the publication of the decision granting recognition. 3 The bankruptcy shall be conducted by summary procedure unless the foreign bankruptcy administrator or a creditor in accordance with Article 172 paragraph 1 requests the bankruptcy office to conduct the ordinary procedure before the distribution of the available assets and provides sufficient security for the anticipated unrecoverable costs.120 120 Amended by No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). |
Art. 171
2. Avoidance claims 1 An avoidance claim is governed by Articles 285 to 292 DEBA121. It may also be initiated by the foreign bankruptcy administrator or by a creditor entitled to bring such action. 2 The deadlines provided for in Articles 285–288a and 292 DEBA are calculated on the basis of the date on which the foreign bankruptcy proceedings were opened.122 122 Inserted by No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). |
Art. 172
3. Schedule of claims 1 The schedule of claims shall only include:
2 Only the creditors mentioned in paragraph 1 and the foreign bankruptcy administrator may bring the action to contest the schedule of claims as provided in Article 250 DEBA.125 3 If a creditor has already been satisfied in part in foreign proceedings connected with the bankruptcy, the amount thus obtained shall be imputed, after deduction of the costs incurred, on the dividend to be paid to such creditor in the Swiss proceedings. 124 Amended by No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). 125 Amended by No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). |
Art. 173
4. Distribution a. Recognition of the foreign schedule of claims 1 After distribution of the proceeds in accordance with Article 172 paragraph 1, any balance shall be remitted to the foreign bankruptcy estate or to those creditors that are entitled to it. 2 The balance may only be remitted after recognition of the foreign schedule of claims. 3 The Swiss court that has jurisdiction to recognise the foreign bankruptcy decree also has jurisdiction to recognise the foreign schedule of claims. This court shall review in particular whether the creditors domiciled in Switzerland have been included fairly in the foreign schedule of claims. These creditors shall be heard. |
Art. 174
b. Non-recognition of a foreign schedule of claims 1 If a foreign schedule of claims is not recognised, the balance is distributed among the creditors of the third class according to Article 219 paragraph 4 DEBA126 provided they are domiciled in Switzerland.127 2 The same applies if the schedule of claims is not filed for recognition within the time-limit set by the court. 127Amended by Annex No 22 of the FA of 16 Dec. 1994, in force since 1 Jan. 1997 (AS 1995 1227; BBl 1991 III 1). |
Art. 174a128
5. Abstention from auxiliary bankruptcy proceedings 1 At the request of the foreign bankruptcy administrator, it may be decided not to conduct auxiliary bankruptcy proceedings if no claims in the sense of Article 172 paragraph 1 have been filed. 2 Where creditors domiciled in Switzerland have filed claims other than those mentioned in Article 172 paragraph 1, the court may decide not to conduct auxiliary bankruptcy proceedings if appropriate account is taken of these creditors’ claims in the foreign proceedings. These creditors shall be heard. 3 The court may make its abstention subject to conditions and requirements. 4 Where the court decides not to conduct auxiliary bankruptcy proceedings, the foreign bankruptcy administrator may, subject to Swiss law, exercise all powers to which he or she is entitled under the law of the state in which the bankruptcy proceedings were opened; he or she may in particular transfer assets abroad and conduct litigation. These powers do not include the performance of sovereign acts, the use of coercive measures or the right to settle disputes. 128 Inserted by No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). |
Art. 174b129
IIIbis. Coordination In proceedings that have a factual connection the authorities and bodies concerned may coordinate their activities among themselves and with foreign authorities and bodies. 129 Inserted by No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). |
Art. 174c130
IIIter. Recognition of foreign decisions on avoidance claims and similar decisions Foreign judgments on avoidance claims or otherwise relating to acts prejudicial to creditors, which are closely connected with a bankruptcy decree recognised in Switzerland, shall be recognised in accordance with Articles 25–27 if they were rendered or are recognised in the state of origin of the bankruptcy decree and the defendant was not domiciled in Switzerland. 130 Inserted by No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). |
Art. 175
IV. Composition and similar procedures. Recognition A composition or a similar procedure approved by a foreign authority shall be recognised in Switzerland. Articles 166–170 and 174a–174c apply by analogy.131 Creditors domiciled in Switzerland shall be heard. 131 Sentence amended by No I of the FA of 16 March 2018, in force since 1 Jan. 2019 (AS 2018 3263; BBl 2017 4125). |
Chapter 12 International Arbitration |
Art. 176
I. Scope of application. Seat of the arbitral tribunal 1 The provisions of this Chapter apply to arbitral tribunals that have their seat in Switzerland if, at the time that the arbitration agreement was concluded, at least one of the parties thereto did not have its domicile, its habitual residence or its seat in Switzerland.132 2 The parties may exclude the application of this Chapter by making a declaration to this effect in the arbitration agreement or a subsequent agreement, and instead agree that the provisions of the third part of the CPC133 apply. The declaration must be in the form specified in Article 178 paragraph 1.134 3 The seat of the arbitral tribunal is determined by the parties, or the arbitration institution designated by them, or, failing both, by the arbitral tribunal135 itself. 132 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). 134 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). 135 Term in accordance with No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 177
II. Arbitrability 1 Any claim involving an economic interest may be submitted to arbitration. 2 A state, or an enterprise held by or an organisation controlled by a state, that is party to an arbitration agreement, may not invoke its own law in order to contest its capacity to arbitrate or the arbitrability of a dispute covered by the arbitration agreement. |
Art. 178
III. Arbitration agreement and arbitration clause 1 The arbitration agreement must be made in writing or any other means of communication allowing it to be evidenced by text.137 2 As regards its substance, an arbitration agreement is valid if it conforms either to the law chosen by the parties, to the law governing the subject-matter of the dispute, in particular the law governing the main contract, or to Swiss law. 3 The validity of an arbitration agreement may not be contested on the grounds that the main contract is invalid or that the arbitration agreement concerns a dispute which has not yet arisen. 4 The provisions of this Chapter apply by analogy to an arbitration clause in a unilateral transaction or in articles of association.138 137 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). 138 Inserted by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 179139
IV. Members of the arbitral tribunal 1. Appointment and replacement 1 The members of the arbitral tribunal shall be appointed or replaced in accordance with the agreement between the parties. Unless the parties agree otherwise, the arbitral tribunal shall comprise three members, with the parties each appointing one member; the members shall appoint a chairperson by unanimous decision. 2 In the absence of an agreement or if the members of the arbitral tribunal cannot be appointed or replaced for other reasons, the state court where the arbitral tribunal has its seat may be seized. If the parties have not agreed on a seat or only agreed that the seat of the arbitral tribunal be in Switzerland, the first state court seized has jurisdiction. 3 Where a state court is called upon to appoint or replace a member of the arbitral tribunal, it shall make the appointment unless a summary examination shows that no arbitration agreement exists between the parties. 4 The state court shall at the request of a party take the measures required to constitute the arbitral tribunal in the event that the parties or members of the arbitral tribunal do not fulfil their obligations within 30 days of being requested to do so. 5 In the case of a multiple-party dispute, the state court may appoint all the members of the arbitral tribunal. 6 A person who is asked to become a member of the arbitral tribunal shall without delay disclose the existence of circumstances that could give rise to legitimate doubt as to his or her independence or impartiality. This obligation applies throughout the entire proceedings. 139 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 180
2. Challenging members of the arbitral tribunals a. Grounds 1 A member of the arbitral tribunal may be challenged:141
2 A party may challenge a member of the arbitral tribunal who has been appointed by that party or in whose appointment that party has participated only on grounds that have come to their attention after the appointment despite exercising due diligence.143 3 ...144 141 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). 142 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). 143 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). 144 Repealed by No 1 of the FA of 19 June 2020, with effect from 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 180a145
b. Procedure 1 Unless the parties have agreed otherwise and if the arbitration proceedings have not yet been concluded, written notice of the challenge stating the grounds must be given to the challenged member of the arbitral tribunal and the other members of the arbitral tribunal within 30 days of the date on which the challenging party becomes aware of the grounds for the challenge or could have become aware thereof had it exercised due diligence. 2 The challenging party may within 30 days of filing the challenge request the state court to reject the challenged member. The state court’s decision is final. 3 During the challenge procedure, the arbitral tribunal may continue the proceedings without excluding the challenged member until the decision is taken, unless the parties have agreed otherwise. 145 Inserted by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art.180b146
3. Removal 1 Any member of the arbitral tribunal may be removed with the agreement of the parties. 2 If a member of the arbitral tribunal is unable to carry out his or her duties within a reasonable time or with due care, and unless the parties have agreed otherwise, any party may file a written request with the state court for the member to be removed, stating the grounds. The state court’s decision is final. 146 Inserted by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 181147
V. Lis pendens The arbitral proceedings become pending from the time when one of the parties submits its request to the member of the arbitral tribunal designated in the arbitration agreement or, in the absence of such designation, from the time when one of the parties initiates the procedure for constituting the arbitral tribunal. 147 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 182
VI. Procedure 1. In general 1 The parties may determine the arbitral procedure, either themselves or by reference to arbitration rules; they may also make the procedure subject to a procedural law of their choice.148 2 Where the parties have not determined the procedure, the arbitral tribunal shall determine it to the extent necessary, either directly or by reference to a law or to arbitration rules. 3 Regardless of the procedure chosen, the arbitral tribunal shall guarantee the equal treatment of the parties and their right to be heard in adversarial proceedings. 4 A party that continues with the arbitration proceedings without objecting immediately to a breach of the rules of procedure of which it is aware or which it would have been aware had it exercised due diligence may not invoke this breach at a later point in the proceedings.149 148 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). 149 Inserted by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 183
2. Interim and conservatory measures 1 Unless the parties have agreed otherwise, the arbitral tribunal may, at the request of a party, order interim measures or conservatory measures. 2 If the party concerned does not comply voluntarily with the measure ordered, the arbitral tribunal or a party may request the assistance of the competent court. The court shall apply its own law.150 3 The arbitral tribunal or the state court151 may make the interim or conservatory measures subject to the provision of appropriate security. 150 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). 151 Term in accordance with No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). This amendment has been made throughout the text. |
Art. 184
3. Taking of evidence 1 The arbitral tribunal takes the evidence itself. 2 Where state legal assistance is required for the taking of evidence, the arbitral tribunal or a party with the consent of the arbitral tribunal may request the participation of the state court at the seat of the arbitral tribunal.152 3 The state court shall apply its own law. On request, it may apply or take account of other forms of procedure.153 152 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). 153 Inserted by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 185a154
5. Participation of the state court in foreign arbitration proceedings 1 An arbitral tribunal with seat abroad or a party to foreign arbitration proceedings may request the state court at the place where the interim or conservatory measure is to be executed to participate. Article 183 paragraphs 2 and 3 apply by analogy. 2 An arbitral tribunal with seat abroad or a party to foreign arbitration proceedings may with consent of the arbitral tribunal request the state court where evidence is to be taken to participate. Article 184 paragraphs 2 and 3 apply by analogy. 154 Inserted by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 186
VII. Jurisdiction 1 The arbitral tribunal shall decide on its own jurisdiction. 1bis It shall decide on its jurisdiction without regard to any action having the same subject matter that is already pending between the same parties before a state court or another arbitral tribunal, unless there are substantial grounds for a stay in proceedings.155 2 Any objection to its jurisdiction must be raised prior to any defence on the merits. 3 The arbitral tribunal shall, in general, decide on its jurisdiction by a preliminary decision. 155 Inserted by No I of the FA of 6 Oct. 2006 (Arbitration, Jurisdiction), in force since 1 March 2007 (AS 2007387; BBl 2006 46774691). |
Art. 187
VIII. Decision on the merits 1. Applicable law 1 The arbitral tribunal shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to the rules of law with which the case has the closest connection.157 2 The parties may authorise the arbitral tribunal to decide ex aequo et bono. 157 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 189
3. Procedure and form 1 The arbitral award shall be rendered in conformity with the procedure and form agreed by the parties. 2 In the absence of such an agreement, the award shall be made by a majority decision or, in the absence of a majority, by the chairperson159. It shall be in writing, reasoned, dated and signed. The signature of the chairperson suffices. 159 Term in accordance with No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). This change was made in the provision mentioned in the AS. |
Art.189a160
4. Correcting, explaining and supplementing the award 1 Unless the parties have agreed otherwise, either party may apply to the arbitral tribunal within 30 days of the award being communicated to correct typographical and accounting errors in the award, explain specific parts of the award or issue a supplementary award in relation to claims made in the arbitration proceedings that were not considered in the award. The arbitral tribunal may itself make corrections, explanations or additions within the same deadline. 2 The application does not affect the deadlines for filing appeals. A new period for filing an appeal in relation to the corrected, explained or supplemented part of the award begins from the date on which notice of the correction, explanation or supplement is given. 160 Inserted by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 190
IX. Finality, Action to set aside, Review 1. Action to set aside 1 The award is final from the time when it is communicated. 2 An arbitral award may be set aside only:
3 As regards preliminary awards, setting aside proceedings may only be initiated on the grounds of the above paragraphs 2(a) and 2(b); the time-limit runs from the communication of the award. 4 The deadline for filing the appeal amounts to 30 days from the award being communicated.163 162 Term in accordance with No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). 163 Inserted by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art.190a164
2. Review 1 A party may request a review of an award if:
2 The request for a review must be filed within 90 days of the grounds for review coming to light. A review may not be requested more than ten years after the award becomes legally binding, except in the case of paragraph 1 letter b. 164 Inserted by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 191165
3. Only appeal authority The only appeal authority is the Swiss Federal Supreme Court. The procedures are governed by Articles 77 and 119a of the Federal Supreme Court Act of 17 June 2005166. 165 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 192
X. Exclusion agreement 1 If none of the parties has their domicile, habitual residence or seat in Switzerland, they may, by a declaration in the arbitration agreement or by subsequent agreement, wholly or partly exclude all appeals against arbitral awards; the right to a review under Article 190a paragraph 1 letter b may not be waived. The agreement requires the form specified in Article 178 paragraph 1.167 2 Where the parties have excluded all setting aside proceedings and where the awards are to be enforced in Switzerland, the New York Convention of 10 June 1958168 on the Recognition and Enforcement of Foreign Arbitral Awards applies by analogy. 167 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 193
XI. Deposit and certificate of enforceability 1 Each party may at its own expense deposit a copy of the award with the state court at the seat of the arbitral tribunal.170 2 At the request of a party, the state court at the seat of the arbitral tribunal shall certify the enforceability of the award.171 3 At the request of a party, the arbitral tribunal shall certify that the award has been made in conformity with the provisions of this Act; such certificate has the same effect as the deposit of the award. 170 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). 171 Amended by No 1 of the FA of 19 June 2020, in force since 1 Jan. 2021 (AS 2020 4179; BBl 2018 7163). |
Art. 194
XII. Foreign arbitral awards The recognition and enforcement of foreign arbitral awards is governed by the New York Convention of 10 June 1958172 on the Recognition and Enforcement of Foreign Arbitral Awards. |
Chapter 13 Final Provisions |
Section 1 Repeal and Amendment of Current Legislation |
Section 3 Referendum and Commencement |
Annex |
Repeal and Amendment of Current Federal Legislation |
I. Repeal of Current Federal Legislation |
The following are repealed:
174[BS 2 737; AS 1972 2819No II 1; 1977237No II 1; 1986 122No II 1] 177[BS 2 845; AS 1951 903Art. 1; 1971 1617; 1992 288Annex No 8. AS 1993 274Art. 74] 178[BS 2 881; AS 1962 459; 1988 1776Annex No I let. f; 1992 288 Annex No 9; 1995 1784, 5050Annex No 3. AS 20021456Annex No 1] |
II. Amendment of Current Federal Legislation |
...180 180 The amendments may be consulted under AS 1988 1776. |
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