Switzerland: Arbitral Tribunal Does Not Act Extra Or Ultra Petita If It Limits Scope Of Declaratory Judgment By Imposing Conditions (Swiss Supreme Court)

In Decision 4A_404/2017, the Swiss Supreme Court dismissed an application to set aside an award based on the principle of extra or ultra petita.

In a French-language decision, the Swiss Supreme Court dismissed a challenge to an award rendered by a three-member tribunal under the auspices of the International Chamber of Commerce.

The underlying dispute arose against the background of the Turkish financial crisis of the early 2000s. A pension fund sold all shares in a Turkish bank to another bank. When offshore clients of the Turkish bank raised claims, the buyer initiated arbitration proceedings requesting, among other things, to be indemnified by the seller.

The buyer sought a declaration that the seller was obliged to compensate it for any losses or damages incurred in connection with offshore clients' claims. The arbitral tribunal granted this relief, subject to the condition that any such claims had to previously be raised against a third party guarantor, limiting the seller's liability to established claims, which the third party guarantor refused to satisfy. The seller challenged the award before the Swiss Supreme Court, arguing that the tribunal awarded something other than or more than was requested (ultra vel extra petita).

The court rejected the seller's request for setting aside. It confirmed that a tribunal acts neither ultra nor extra petita if it applies a different legal qualification to a claim than argued, or if it awards less than requested. In particular, the court found that it is considered "awarding less" (and, therefore, not ultra or extra petita), if an arbitral tribunal issues a declaratory judgment rather than awarding damages, if it imposes conditions rather than declaring unconditional liability and if it holds that a claim is premature rather than non-existent.

Case: Decision 4A_404/2017 (26 July 2018).

Originally published in Thomson Reuters

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