Homburger team succeeds before Federal Supreme Court: Appeal of Arbitral Award successful
Partner Gabrielle Nater-Bass, counsel David Rosenthal and associate Julian Schwaller (all Litigation / Arbitration practice team) recently achieved a significant victory for a client before the Swiss Federal Supreme Court. In its decision dated February 4, 2014 (see Decision 4A_460/2013), the Supreme Court found that an arbitral tribunal violated the principle of due process (the appellant’s right to be heard) because it failed to address a material argument which the appellant had raised consistently during the course of the arbitration proceedings.
The appellant, represented by Homburger, filed the appeal following the final award in an international commercial arbitration conducted under the ICC Rules, where it acted as respondent. During the arbitration proceedings, it had repeatedly argued that the claims raised by the opposing party were excluded by the parties’ contractual arrangement. Even though the arbitral tribunal referred to this argument in its summary of the parties’ positions in the final award, it failed to address it in the reasoning of the award.
The Federal Supreme Court in its decision followed the appellant’s interpretation of the ICC final award. The arbitral tribunal has now been asked to review its decision.
Successful challenges of arbitral awards rendered in international commercial arbitration proceedings are rare in Switzerland. In 2013, only one appeal out of 19 appeals was successful.