Arbitral Jurisdiction and Court Review: Three Swiss Federal Supreme Court Decisions to Reconsider

This article discusses three recent decisions of the Swiss Federal Supreme Court that show inconsistent approaches with regard to the availability of court review in connection with issues of arbitral jurisdiction. In the first case, the Court considered itself bound by the arbitrator’s finding of an agreement to arbitrate, only because the arbitrator had come to his conclusion by way of subjective interpretation, rather than objective interpretation. The article argues that court review ought to be available regardless of whether the arbitrator’s finding of an agreement to arbitrate is based on subjective or objective interpretation. The second case relates to multi-tiered dispute resolution clauses. Here, the Court accepted to review a challenge for violation of a pre-condition to arbitration, regardless of whether the objection to arbitration was “jurisdictional,” on the sole ground that the violation at issue needed to be sanctioned one way or another. This is unconvincing. Court review ought to be available only if the objection to arbitration raises a genuine issue of jurisdiction, which this case did not. In the third case, the Court addressed the situation where a party objects to the courts’ jurisdiction on the ground that the parties agreed to arbitrate the dispute. In this decision, the Court created a twotiered review of such objections, requiring full review of the issue whether an arbitration agreement had come to existence, and limited review for issues of scope. This gives both arbitrators and courts equal powers to examine whether an arbitration agreement exists, which may lead to undesirable parallel proceedings on the issue whether an arbitration agreement exists. These three cases, and the reasoning that underlies them, should be reconsidered.