Waving the Green Flag to Emergency Arbitration under the Swiss Rules: the Sauber Saga

Abstract

On 11 March 2015 – just four days before the start of the 2015 Grand Prix season in Melbourne – the Australian courts enforced a Partial Award effectively ordering the Sauber Formula One team to allow the race car driver, Mr van der Garde, to race in the 2015 Formula One season as one of its team drivers. An appeal was rejected the following day and the parties thereafter settled just over 24 hours before the start of the Melbourne Grand Prix with Mr van der Garde not proceeding to the starting grid. This dramatic turn of events was the culmination of a dispute arising from the ousting of Mr van der Garde from the Sauber team’s 2015 lineup which started with the initiation of emergency arbitrator proceedings before the Swiss Chambers’ Arbitration Institution in November 2014. The present article focuses on the emergency arbitrator mechanism under the Swiss Rules in both theory and practice. The first part of the article examines the theory behind this mechanism by elucidating the main aims underlying Article 43 of the Swiss Rules and how the latter provision sets out to achieve such aims. A comparison with emergency arbitrator provisions under other arbitral rules highlights the heightened degree of flexibility in the emergency arbitrator mechanism under the Swiss Rules as well as the unique possibility of obtaining ex parte relief available under these Rules. The second part of the article focuses on the experience of the Swiss Chambers’ Arbitration Institution with respect to the emergency arbitrator mechanism with particular emphasis on the “Sauber saga” as an illustrative example of how effectively this mechanism is working in practice.