Swiss Rules Joinder Consent

The waiver of Section 192(1) of the PILA must be clear and in writing. According to case law, a provision in the arbitration agreement that the award is “final and binding” is not sufficient to establish a valid exclusion agreement. The Federal Supreme Court also ruled that previous waivers contained in the statutes of sports federations cannot be validly invoked against athletes in annulment proceedings, even if the formal conditions of Article 192(1) of the PILA are met. Indeed, the consent of athletes to such derogations cannot be considered voluntary, since they have no choice but to accept the content of these statutes if they wish to compete. This issue remains a much discussed issue that may not be definitively resolved. Chapter 12 of the IPRG was subject to a “slight” revision, which was revised on 1. January 2021 to transpose into law a number of key principles developed in case law, further strengthen party autonomy and improve the predictability and clarity of arbitration. The revision also introduced the possibility for the parties to file pleadings in English with the Swiss Federal Supreme Court (Article 77 paragraph 2bis of the Federal Supreme Court Act). In a 2021 decision, the Federal Supreme Court ruled that this new provision had no influence on the language of the proceedings pending before it. The Federal Court therefore continues to conduct the proceedings in one of the four national languages of the Swiss Confederation and a party cannot demand that the procedural documents be translated into English. Chapter 12 of the PILA is silent on the issues of third-party involvement through membership or notification by third parties. As a general rule, notification of membership and third party implies the express or implied consent of the party involved in the arbitration and a decision of the arbitral tribunals on its jurisdiction over such third parties. In the Portuguese case, the Law on Voluntary Arbitration, approved by Law No 63/2011 of 14 December, establishes complementary regulations for this mechanism, which may be regulated differently by agreement of the parties, either directly, respecting the principle of equal participation of all parties in the selection of arbitrators, or by reference to the arbitration rules of an international arbitration institution.

which provides for the membership of third parties. While the Swiss 2021 Rules, like the Swiss Rules 2012, provide for the potential role of the arbitral tribunal as arbitrator (Article 19.5, Swiss Rules 2021), the revised Rules now explicitly encourage the search for alternative means of resolving the dispute, including in parallel with the ongoing arbitration, and stipulate that “at any time during the arbitration, the parties may agree to: resolve their dispute or part thereof through mediation, including under the Swiss Mediation Rules, or other forms of alternative dispute resolution”, and that the arbitration proceedings will be suspended during this period, unless the parties agree otherwise (Article 19.6, Swiss Rules 2021). Arbitration shall be instituted by a notice or request for arbitration addressed by the claimant to the respondent or to the arbitral institution chosen by the parties to administer their disputes. There are no limitation periods or mandatory rules on the form or content of the claim in Chapter 12 PILA or Part 3 ZPO (the first issue is a question of applicable substantive law and not of procedural or arbitral law). Based on an increased number of multi-party and multi-contractual arbitrations, the Swiss Rules 2021 now include extended rules for follow-up requests, party membership and party intervention (Article 6, 2021 Swiss Rules). These are situations where, for example, a respondent asserts a claim against a co-respondent (incidental action) or against another party (consolidation), or when another party requests to participate in the arbitration by asserting a claim against a party to the ongoing arbitration (intervention). Prior to the constitution of the tribunal, a separate application against the party concerned shall be submitted to the secretariat. In accordance with the constitution of the arbitral tribunal and after hearing the other parties, the court decides on the admissibility of the notification, taking into account all relevant circumstances (Art. 6.2 and 6.3 of the Swiss Rules 2021). It is also up to the court to decide on the request of a third party to participate in the proceedings “in a capacity other than an additional party” and on its modalities (Article 6.4, 2021 Swiss Rules). Finally, the Swiss Rules 2021 now provide for an explicit possibility to submit to the Court of Justice a request for joinder of the arbitral proceedings (Art.

7, Swiss Rules 2021). One such mechanism is precisely third-party intervention, which is largely triggered when a third party becomes allowed to participate in the ongoing arbitration on its own initiative or at the request of a party to the arbitration. Multi-party provisions are often best dealt with by reference to the Arbitration Rules, which deal with this issue in a comprehensive and clear manner (e.g. Article 11 of the Swiss Rules, Articles 8 and 12 of the ICC Rules, Article 8 of the LCIA Rules, Article 9 of the SIAC Rules, etc.).