Lexploria

Information Note on the Court’s case-law 194

March 2016

Tabbane v. Switzerland (dec.) - 41069/12

Decision 1.3.2016 [Section III]

Article 6

Civil proceedings

Article 6-1

Access to court

Waiver of right to appeal against arbitration award: inadmissible

Facts – The applicant, a Tunisian businessman, entered into a contract with a French company. The agreement was governed by the laws of the State of New York. The contract included an arbitration clause and a clause excluding any appeal (“ the decision of the arbitration shall be final and binding and neither party shall have any right to appeal such decision to any court of law” ). A dispute arose. The arbitrators d etermined that the arbitration tribunal would meet in Geneva.

As the arbitration award was unfavourable to him, the applicant attempted, unsuccessfully, to have it set aside by the courts. He argued on the basis of the legal culture with which the parties were familiar that they had understood the English term “appeal” in a narrow sense, corresponding to the French word “ appel ”.

The Swiss Federal Court refused to examine the arbitration award, considering that the parties had validly waived the right to a ppeal against any decision issued by the arbitration tribunal in accordance with section 192 of the Federal Law on Private International Law ( LPIL ). After a literal anal ysis of the clause (right “to” appeal, and not “ of” appeal) and an assessment of comparative law, it held that the clause could not have been intended to cover only ordinary appeals, which were already excluded by the three legislative systems examined (Ne w York, France and Tunisia). The waiver thus also covered extraordinary appeals. In the Federal Court’s view, the fact of making such an option available was not in itself contrary to Article 6 of the Convention, given that section 192 of the LPIL required that the waiver be explicit and common to all the parties. The Federal Court further stated that the waiver could be declared void only in the absence of true consent and that, by the very nature of arbitration, it was difficult to see what important publ ic interest might be infringed in the ordinary course of events by an advance waiver of a right to appeal.

Law – Article 6

(a) Access to a court – Arbitration had not been imposed by the law, but had been the result of the parties’ contractual freedom. The applicant had, without constraint, expressly and freely waived the possibility of submitting potential disputes to the ordinary courts, which wo uld have provided him with all the guarantees of Article 6.

In the Court’s view, the waiver had been unequivocal. In interpreting the parties’ wishes, the Federal Tribunal had concluded that they had wished to exclude any appeal. In the light of the wordin g of the clause, and in so far as the Court had jurisdiction to determine the question, such a conclusion seemed neither arbitrary nor unreasonable.

The waiver had been attended by minimum safeguards, reflecting its importance: the applicant had been able to select an arbitrator of his own choice, who, in concert with the other two arbitrators, had chosen Geneva as the place of arbitration, with the result that the procedure had been governed by Swiss law; the Federal Court had heard the applicant’s argumen ts and had taken into account all of the objectively relevant factual and legal elements; and its judgment had been adequately reasoned and did not appear arbitrary in any way.

The impugned legal provision reflected a choice of legislative policy correspo nding to a two-fold wish on the part of the Swiss legislature. Firstly, to increase the attractiveness and effectiveness of international arbitration in Switzerland by avoiding situations in which arbitration awards were subject to review by both an appell ate body and the judge responsible for its enforcement ; and, secondly to relieve the Federal Court of such cases.

This provision did not appear disproportionate to the aim pursued. The waiver of all right of appeal was not an obligation, but merely an opti on open to parties who had no ties in Switzerland. Where the parties opted for such a waiver, the law provided for the application, by analogy, of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards if the award was to be enforced in Switzerland. The arbitration tribunals’ decisions were then subject to review by the ordinary courts, since Article V of the New York Convention li sted a number of grounds on which the recognition and enforcement of an award could, exceptionally, be refused.

In short, the restriction had pursued a legitimate aim, namely promoting Switzerland’s position as a venue for arbitration, through flexible and rapid procedures, while respecting the applicant’s contractual freedom, and could not be regarded as disproportionate. It followed that the very essence of the right of access to a court had not been impaired.*

Conclusion : inadmissible (manifestly ill-fou nded).

(b) Equality of arms – Given that an expert report had been submitted by the applicant’s opponent and included in the case file, the arbitration tribunal had refused to order an expert report itself, but had informed the applicant that it was suffi cient to grant his own private expert access to the same accounting documents as those used by his opponent.

In the Court’s view, even supposing that the safeguards of Article 6 were applicable in the present case, such reasoning was neither unreasonable nor arbitrary. Since the applicant had had access to the documents in question, he had not been placed at a substantial disadvantage vis-à-vis his opponent.

Conclusion : inadmissible (manifestly ill-founded).

* See also Eiffage S.A. and Others v. Switzerla nd (dec.), 1742/05 , 15 September 2009; Osmo Suovaniemi and Others v. Finland (dec.), 31737/96 , 23 February 1999; Transportes Fluviais do Sado S.A. v. Portugal (dec.), 35943/02 , 16 December 2003; and Suda v. the Czech Republic , 1643/06, 28 October 2010, Information Note 134 .

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