Abstract

Abstract A matter of perspective? When a dispute arises and on the government’s side a non-signatory to the arbitration agreement or investment treaty adopted the contested action, privity of contract and rules of attribution of conduct may apply. Both have been interpreted in different manners. When one put all these interpretations together, the result is a picture of impossible spaces and irreconcilable scenarios like in a drawing of Escher. If Escher expressed his artistic inspiration by challenging gravity and visual logic, practitioners may nowadays find challenging solving the dilemma of when and how an arbitration agreement can be extended to a non-signatory state or the conduct of a state entity be attributed to the state. In its recent decision 4 A_636/2018, the Swiss Supreme Court confirmed its case law that exceptions to the doctrine of privity of contract exist under Swiss law, but these are limited in number and scope. The same applies regardless of whether private or public entities are concerned. This article will examine decision 4 A_636/2018 in light of Swiss case law and draw a comparison with investment arbitral tribunals’ jurisprudence applying rules of attribution of conduct of customary international law when privity of contract lacks on the government’s side.

Talk to us

Join us for a 30 min session where you can share your feedback and ask us any queries you have

Schedule a call

Disclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.