THE NEW SWISS APPROACH TO THE RIGHT TO BE HEARD – BALANCING CHALLENGING FAIRNESS AND EFFICIENCY CONCERNS

Abstract

Based on recent jurisprudence by the Swiss Supreme Court on the parties’ right to be heard, this article analyses how the focus on evaluating infringements of the right to be heard under Swiss lex arbitri has shifted over time. Whereas some decades ago any infringement of the right to be heard led to the annulment of the arbitral award, the Swiss Supreme Court now requires that there be a potential impact on the substantive outcome of the case. As an analysis of pertinent jurisprudence in Austria, England and in relation to the International Centre for Settlement of Investment Disputes [“ICSID”] demonstrates, this appears to be in line with developments at the forefront of international arbitration. From a practical point of view, the new Swiss approach is likely to help tribunals increase procedural efficiency, one of the utmost concerns of modern arbitration. At the same time, parties may, in certain scenarios, run into evidentiary problems in annulment proceedings. As a potential remedy, parties may need to react timely with more specifically reasoned objections against any potential infringements of the right to be heard by arbitral tribunals. The authors trust that the new approach adopted by the Swiss Supreme Court will increase procedural efficiency in Swiss arbitration proceedings.