Parallel Actions Pending before an Arbitral Tribunal and a State Court: The Solution under Swiss Law

Abstract

SWITZERLAND IS undoubtedly known as an arbitration-friendly country. However, since the recent Peruvian case decided by the Federal Tribunal in the matter Compania Minera Condesa SA and Compania de Minas Buenaventura SA v. BRGM-Perou SAS ,1 one may hold a different opinion. True, the motion to set aside the arbitral tribunal's interim award affirming its jurisdiction was rejected by the Federal Tribunal; however, the legal implication of that decision may affect the liberal conception of the Swiss arbitration law, which is one of its characteristic features. Prior to discussing the Federal Tribunal's decision in the Peruvian case, some preliminary considerations should be made. In his introduction, Professor Schlosser gave a brilliant outline of what is meant by the concept of the ‘competence-competence’ of the arbitrators. This concept has a positive effect which empowers the arbitral tribunal to decide on its jurisdiction, and in certain systems of law, such as French law, also a negative effect which obliges a state court to decline its jurisdiction where an arbitration agreement exists. This rule results expressly from Article 1458 of the New Code of Civil Procedure, which applies to both domestic and international arbitration.2 True, under French law, as under most other national laws, the state court will have the last word on the arbitral tribunal's jurisdiction, since the decision of the arbitrators in this respect can be reviewed and, as the case may be, set aside by the state jurisdiction. However, the arbitral tribunal has the priority to decide on the issue of its jurisdiction. For the leading trend of the Swiss doctrine, mere is no such negative effect under Swiss law; indeed, according to Article 186 of the Swiss Statute on Private International Law (PIL Statute), the arbitral tribunal is competent to decide on its own jurisdiction. However, this …