Spruchkörper: I. zivilrechtliche Abteilung
dRSK-Rechtsgebiet: IPR/IZPR und Arbitration
|Waiving any recourse against the arbitral award – do parties waive also the right to request revision?|
|In Case 4A_53/2017, the Swiss Federal Court decided that a clause providing that «[t]here shall be no appeal to any court from awards rendered thereunder» constituted a valid waiver of the right to challenge (set aside) future arbitral awards. Where the parties validly waived the right to challenge future awards and they discover new facts after the notification of the award but while the time limit to challenge the award is running, they cannot request a revision of the award for the same reason as they would be circumventing the waiver clause and violating the principle of good faith.|
 Article 190(2)(a) of the Swiss Private International Law Act («PILA») provides that the award may be annulled if the sole arbitrator was not properly appointed or if the arbitral tribunal was not properly constituted.
 Article 192 PILA provides that, if none of the parties have their domicile, their habitual residence, or a business establishment in Switzerland, they may, by an express statement in the arbitration agreement or by a subsequent written agreement, waive fully the action for annulment or they may limit it to one or several of the grounds listed in Art. 190(2) PILA.
 Chapter 12 PILA is silent on the availability of «revision» as a recourse against arbitral awards. The Swiss Federal Court (the «Court») has filled that gap (cf. BGE 118 II 199; BGE 134 III 286). According to the Court’s practice, a party can request revision of an arbitral award on two grounds: the discovery of material facts or evidence that existed already before the award was rendered but could not have been submitted in the arbitration, or that the outcome of the arbitration was influenced by a criminal offense.
 On 17 January 2014, the Republic of Croatia («Croatia») initiated arbitration proceedings against Hungary’s largest oil company, MOL Hungarian Oil and Gas Company Plc («MOL»), under the UNCITRAL Arbitration Rules.
 Croatia requested among other things that the arbitral tribunal determine that an amendment to the 2003 shareholders’ agreement between Croatia and MOL relating to INA industrija nafte d.d., Croatia’s largest oil company, had been procured by bribery and was therefore null and void.
 A three-member arbitral tribunal was constituted. The arbitration was seated in Geneva and administered by the Permanent Court of Arbitration.
 By final award dated 23 December 2016, the arbitral tribunal dismissed Croatia’s claims. On 1 February 2017, Croatia challenged the award on several grounds before the Court and, alternatively, requested revision of the award on the basis that, after the award had already been notified to the parties, it learned that the arbitrator Croatia itself had appointed had failed to disclose circumstances that could raise legitimate doubts as to his independence and impartiality.
 The relevant arbitration agreements provided that «[a]wards rendered in any arbitration hereunder shall be final and conclusive judgment thereon may be entered into any court having jurisdiction for enforcement thereof. There shall be no appeal to any court from awards rendered thereunder.»
 The Court held that the challenge (request for setting aside the award) is inadmissible because the parties have validly waived the right to challenge awards (Art. 192 PILA).
 According to the Court, the waiver clause at issue constituted a valid waiver of the right to challenge any award, since it undoubtedly revealed the parties’ common intent to waive any recourse against any arbitral decision to any state court. That intent followed clearly from the text of the waiver clause («[t]here shall be no appeal to any court from awards rendered thereunder»). The intent to waive any recourse was reinforced and confirmed by the preceding sentence in the waiver clause, which not only insists on the definitive character of awards by using two similar adjectives («final» and «conclusive») but also foresees that awards may be the object of exequatur proceedings («judgment thereon may be entered into any court having jurisdiction for enforcement thereof»). The Court thus held that the term «appeal» in the waiver clause must be understood in a broad sense – as reflecting a desire to exclude any recourse to state courts, not only appeals with full review of facts and law. Also, considering the principle of effectiveness in interpretation, the Court could not see what interest the parties could have had in excluding ordinary appeals against awards, given that ordinary appeals against awards are unavailable in any of the relevant jurisdictions. Having been advised in the negotiations by lawyers, and having agreed to arbitrate in Geneva, the parties could only have waived the only recourse that was available, namely the right to set aside the award.
 The Court also declared inadmissible Croatia’s request for revision. It considered that the revision of arbitral awards was subsidiary to the right to challenge the award. It further considered that Croatia discovered the alleged conflict only in mid-January 2017, when the time limit to challenge the award was still running. In the Court’s opinion, it is difficult to accept that, if a party validly waives the right to challenge any future award, including for incorrect constitution of the tribunal, that party should be allowed to request a revision of the award on the same ground, while the time limit to challenge the award was still running. This would constitute a circumvention of the parties’ waiver of the right to challenge and make Art. 190(2) PILA a dead letter. To allow requests for revision under such circumstances would violate the principle of good faith.
 Having declared both the challenge and the request for revision inadmissible, the Court ordered Croatia to pay court costs of CHF 200,000 and compensation for attorney’s fees of CHF 250,000.
 Two main questions were before the Court, namely whether the parties had validly waived their right to challenge the award and, if so, whether Croatia was also precluded from requesting a revision of the award. The Court answered both questions in the affirmative. The latter question resolved a controversial issue that, until then, had only been addressed in dicta. Accordingly, the decision has been designated for publication in the official Swiss Federal Court register as leading case.
 With its decision on the first issue, the interpretation of the waiver clause, the Court confirmed and solidified its case law, which originated in 2005 with BGE 131 III 173, that waiver clauses need not expressly mention the recourse that is being waived. It is sufficient that the parties clearly and unequivocally express their intent to waive any recourse to courts (as confirmed, among others, in BGE 133 III 235; Judgement of the Federal Court 4P.206/2006 of 30 March 2007; Judgement of the Federal Court 4A_486/2010 of 21 March 2011; Judgement of the Federal Court 4A_238/2011 of 4 January 2012; BGE 143 III 55).
 The Court held that the clause «[t]here shall be no appeal to any court from awards rendered hereunder» clearly expressed the parties’ intent to waive the right to any recourse to courts (cf. Judgement of the Federal Court 4A_53/2017 of 17 October 2017 c. 2.2). The term «appeal» was to be understood broadly. Such an expansive interpretation is consistent with the Court’s prior decisions on similar waiver clauses, including the following: «The decision of the arbitrator shall be final and binding and neither party shall have any right to appeal such decision to any court of law» (Judgement of the Federal Court 4A_486/2010 of 21 March 2011 c. 2.2); «neither party shall seek recourse to a law court nor other authorities to appeal for revision of this decision» (Judgement of the Federal Court 4A_577/2013 of 3 April 2014 c. 3.4); and «[t]he decision of the arbitrator in any such proceeding will be final and binding and not subject to judicial review. Appeals to the Swiss Federal Tribunal from the award of the arbitrator shall be excluded…» (BGE 143 III 55 c. 3.2). The decision thus is consistent with prior case law.
 This case also illustrates, however, that the Court’s practice regarding waivers of the right to set aside awards is not as «restrictive» as the Court suggests (see Judgement of the Federal Court 4A_53/2017 of 17 October 2017 c. 2.1.1: «la pratique n’admet que de manière restrictive les conventions d’exclusion»). This is so in at least two respects:
 First, the Court applies an interpretive presumption in favor of the effectiveness of the waiver (Judgement of the Federal Court 4A_53/2017 of 17 October 2017 c. 2.2: «effet utile»). The Court thus presumes that the parties intended to waive the challenge under Art. 190 PILA. Such an approach is hardly restrictive.
 Second, the Court is rather quick to conclude that a broad waiver clause is unambiguous, even when the Court has to use interpretive presumptions. The use of an interpretive presumption normally suggests quite the contrary, namely that a clause is ambiguous or unclear (cf. ZK OR-Jäggi/Gauch/Hartmann, Art. 18 n. 486: «Auslegungsregeln für Zweifelsfälle»).
 According to the Court, there was no room for restraint because the interpretation of the waiver clause did not reveal any ambiguity (see Judgement of the Federal Court 4A_53/2017 of 17 October 2017 c. 2.2 in fine, stating «la discussion ouverte par la recourante au sujet de la pratique restrictive de la jurisprudence en la matière n’a pas lieu d’être, contrairement à ce qui eût été le cas si l’interprétation de la clause en question avait révélé le caractère ambigu de la clause d’exclusion.»). That is not convincing. The Court can only say that the waiver clause was unambiguous after applying an interpretive presumption that applies only in case of ambiguity. This makes the Court’s reasoning appear circular.
 In short, the waiver clause was not as unambiguous as the Court suggests, nor is it convincing that there was no room for restraint when interpreting the clause. The Court could have applied a different, more «restrictive» interpretive presumption, for example one in favor of the meaning that is less onerous to the parties (similar to in dubio mitius). Such an approach would not be far from the standard that many believed applied before BGE 131 III 173, namely that the parties needed to identify the recourse that they intended to waive (see, e.g., Felix Dasser, Internationale Schiedsentscheide ohne Rechtsmittel: Ab jetzt gilt’s ernst, in: Jusletter 9. Mai 2005, Rz. 6).
 Having concluded that the challenge is inadmissible, the Court addressed the second question, namely whether the request for revision was admissible. The Court decided it was inadmissible. The Court considered it difficult to accept that parties, who had waived their right to set aside the award, including for the arbitrators’ lack of independence and impartiality, could make request a revision of the award for the same reasons, while the time limit to challenge the award was still running. The Court relied on dicta in a prior decision, Judgement of the Federal Court 4A_234/2008 of 14 August 2008 (c. 2.1). The Court’s reasoning is otherwise relatively short, especially compared to the extensive analysis of the waiver clause.
 By deciding the case on the basis of the principle of good faith, the Court did not need to address several unresolved questions, including the most basic one, namely whether the parties can validly waive the right to revision at all (contra: Domitille Baizeau, Waiving the Right to Challenge an Arbitral Award Rendered in Switzerland: Caveats and Drafting Considerations for Foreign Parties, Int. A.L.R. 8/2005, 69–77, 75; Paolo Michele Patocchi/Cesare Jermini, Art. 192, in: Basler Kommentar Internationales Privatrecht, ed by. Heinrich Honsell et al., 3rd Ed., Basle 2013, n. 22; pro: Bernhard Berger/Franz Kellerhals, International and Domestic Arbitration in Switzerland, Berne 2015, n. 1982). If waivable, how should broad and unspecific waiver clauses be interpreted? Should a waiver of «any recourse» presumptively preclude also requests for revision? Or should it presumptively not preclude requests for revision, given that the two types of recourse serve different purposes and parties may legitimately want to exclude only one and not the other?
 The availability of revision and to what extent it can be waived are likely to be addressed in the upcoming revision or «brush up» of Chapter 12 of the PILA.
Mladen Stojiljković, Dr. iur., LL.M., Rechtsanwalt, Homburger AG
|Zitiervorschlag: Mladen Stojiljkovic, Waiving any recourse against the arbitral award – do parties waive also the right to request revision?, in: dRSK, publiziert am 19. Dezember 2017|
|ISSN 1663-9995. Editions Weblaw|
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