Challenge of international arbitration awards in Switzerland for lack of independence and/or impartiality of an arbitrator – Is it time to change the approach?

Abstract

It is almost unanimously admitted that the case law of the Swiss Federal Tribunal concerning Art. 190(2) PILS is "ultra-restrictive". Recent case law shows that this is particularly true with respect to challenges based on an alleged irregular or improper composition of the arbitral tribunal (Art. 190(2) lit. a PILS). The recent decisions discussed in this paper give the disturbing impression that our Supreme Court is adopting too relaxed an approach to the concepts of independence and impartiality of arbitrators, in particular in sports arbitrations. Renowned arbitrators have recently sounded the alarm with respect to the negative consequences that such an "ultra-restrictive" approach could have, in particular with respect to the attractiveness of Switzerland as a venue for arbitration. Although strict procedural requirements are often desirable in order to prevent parties from filing groundless challenges that may delay the proceedings, it could be detrimental to arbitration in general, and to Swiss arbitration in particular, if fundamental principles such as the principle of independence and impartiality of arbitrators were neglected. This paper seeks to propose possible remedies that could be implemented in order to ensure a more effective control of the independence and impartiality of arbitrators, not only by the Swiss Federal Tribunal, but also by arbitral institutions.