Summary
Statutory arbitration clauses for the settlement of corporate law disputes are now expressly allowed under the newly introduced Swiss corporate law. Such clauses must comply with specific procedural requirements in favor of persons who may be directly affected by the legal effects of the arbitral award.
In order to comply with those requirements and to ensure that corporate law disputes can be settled efficiently and effectively, the Swiss Arbitration Centre has issued the Supplemental Swiss Rules for Corporate Law Disputes, in force as from 1 January 2023.
This paper proposes a few comments on the legal basis for statutory arbitration clauses and such supplemental rules, in particular how they address the legal requirements for the validity of the statutory arbitration clauses and for the proceedings based on such clauses. Furthermore, this paper discusses the impact of the bankruptcy of a Swiss joint stock company on the statutory arbitration clause provided for in its articles of association in case of a liability claim brought by creditors against members of the corporate bodies.
Introduction
With the entry into force on 1 January 2023 of the new Article 697n of the Swiss Code of Obligations (the “CO”), the settlement of corporate law disputes by arbitration based on arbitration clauses inserted in the articles of association of Swiss joint stock companies, partnerships limited by shares and limited liability companies (statutory arbitration clauses) is expressly allowed. That new provision provides for specific procedural requirements in favor of persons who may be directly affected by the legal effects of the arbitral award (the “Affected Persons”).
In order to comply with those requirements and to ensure that corporate law disputes can be settled efficiently and effectively, the Swiss Arbitration Centre issued the Supplemental Swiss Rules for Corporate Law Disputes (the “Supplemental Swiss Rules”). They entered into force on 1 January 2023 as well. The Swiss Arbitration Centre also proposes a model statutory arbitration clause providing for the Supplemental Swiss Rules (the “Model Clause”).
An explanatory note accompanies the Supplemental Swiss Rules and the Model Clause (the “Explanatory Note”). The Explanatory Note has been drafted with the view of clarifying the Supplemental Swiss Rules and the Model Clause; it does not express the opinion of the Arbitration Court of the Swiss Arbitration Centre (the “Court”). It is not intended to freeze interpretation of the Supplemental Swiss Rules¹ Those documents are available on the Swiss Arbitration Centre’s website².
This paper proposes a few comments on the legal basis, i.e. the newly introduced Article 697n CO (I) and the Supplemental Swiss Rules, in particular how they address the requirements set forth by that provision for the validity of the statutory arbitration clauses and for proceedings based on such clauses (II). This paper continues by discussing the impact of the bankruptcy of a Swiss joint stock company on a statutory arbitration clause in case of a liability claim brought by creditors against members of the corporate bodies (III).
¹ Explanatory Note, p. 1.
² swissarbitration.org/centre/arbitration/arbitration-rules/
