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Swiss Judges as Arbitrators or as Nominators for Arbitrators

NCJ Number
The Arbitration Journal Volume: 35 Issue: 4 Dated: (December 1980) Pages: 22-26
M A Wenner
Date Published
5 pages
The benefits of Swiss law with regard to allowing judges to serve as arbitrators and as nominators of arbitrators in dispute settlements are discussed.
Swiss arbitration law has recently been clarified and adapted to the requirements of the modern business community. Before this modernization occurred it was almost impossible to understand the role or function of Swiss judges in arbitration proceedings. Like the United States, Switzerland is a Federal State, with the law of procedure in civil and commercial matters falling within the province of member States or cantons. Swiss law traditionally grants the parties in a dispute the greatest possible latitude in agreeing to arbitrate and in selecting arbitrators. Virtually any person may arbitrate if so chosen by the arbitration agreement. Arbitration is always viewed as an alternative to litigation in ordinary courts, and the designation of a judge as arbitrator is always treated as a binding submission to arbitration. It is then up to the designated judge to accept the nomination. Judges have no special power during the dispute arbitration simply by virtue of the fact that they are judges. In addition, under Swiss law all arbitrators are subject to disqualification from a case on the same grounds that would disqualify a judge, e.g., direct interest in the subject matter of the dispute. One recurring problem in any arbitration procedure is the failure of the parties to agree on the selection of an arbitrator. Both the Concordat and the Zuerich Civil Procedure Rules provide practical machinery, a back-up selection process for the appointment of arbitrators in the event of impasse. If the arbitration agreement does not provide a method of overcoming a deadlock in the formation stage, the supreme court of the State of the seat of the arbitral tribunal has the power to appoint in three specified situations. Swiss law thus assures that problems will be effectively solved. National and international arbitrations are understandably popular in Switzerland. Approximately 40 footnotes are included in the article. (Author abstract modified).


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