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Daniela Frenkel; in: ASA Bull. 1/2024, p. 45 et seqq.
Com­men­tary on Swiss Fed­er­al Tri­bunal deci­sion 4A_148/2023 on September 4, 2023

In its deci­sion 4A_148/2023, the Swiss Fed­er­al Tri­bunal con­firmed the prin­ci­ple of Arti­cle 178.3 PILA pur­suant to which the valid­i­ty of an arbi­tra­tion agree­ment may not be con­test­ed on the grounds that the main con­tract is invalid (autonomy/​separability of arbi­tra­tion agree­ment). While inca­pac­i­ty to con­tract due to a party’s minor­i­ty has an impact both on the valid­i­ty of the main con­tract and arbi­tra­tion agree­ment, such a con­clu­sion is not manda­to­ry in oth­er sit­u­a­tions. Under Swiss law, for instance the capac­i­ty to act is a rel­a­tive con­cept that must be assessed indi­vid­u­al­ly in rela­tion to a spe­cif­ic act at a spe­cif­ic point in time. It is there­fore pos­si­ble that a par­ty may have the required dis­cern­ment to grasp the mean­ing and scope of a main con­tract, but not those of an arbi­tra­tion agree­ment, and vice ver­sa. Although the pro­tec­tion of a civil­ly inca­pable per­son is part of the pub­lic pol­i­cy, a set­ting-aside of an arbi­tral award based on a vio­la­tion of pub­lic pol­i­cy is extreme­ly rare.

I. Con­cept of Auton­o­my of Arbi­tra­tion Agree­ments under Swiss law

Pur­suant to Arti­cle 178.3 of the Swiss Pri­vate Inter­na­tion­al Law Act (“PILA”), it can­not be object­ed to an arbi­tra­tion agree­ment that the main con­tract is invalid or that the arbi­tra­tion agree­ment relates to a dis­pute that has not yet arisen.

The prin­ci­ple of the auton­o­my of the arbi­tra­tion agree­ment has been undis­put­ed in Swiss case law and doc­trine for decades: Regard­less of whether the two con­tracts are gov­erned by dif­fer­ent laws or the same law, as a rule, the main con­tract does not have the same fate as the arbi­tra­tion agree­ment in terms of its exis­tence, inva­lid­i­ty, ille­gal­i­ty or ter­mi­na­tion.¹

Of course, this does not exclude the pos­si­bil­i­ty that iden­ti­cal rea­sons (for instance the inabil­i­ty to act, lack of good faith and lack of rep­re­sen­ta­tion) affect the valid­i­ty of both the main con­tract and the arbi­tra­tion agree­ment (so called ​“iden­ti­ty of defect**”).²

How­ev­er, as the deci­sion 4A_148/2023 dat­ed 4 Sep­tem­ber 2023 of the Swiss Fed­er­al Tri­bunal makes clear, the rule remains that the main con­tract and the arbi­tra­tion agree­ment are sep­a­rate, and an arbi­tral tri­bunal has to indi­vid­u­al­ly check whether a defect affects the valid­i­ty of only the arbi­tra­tion agree­ment, only the main con­tract or both of them.³

II. Swiss Fed­er­al Tri­bunal Deci­sion 4A_148/2023 dat­ed 4 Sep­tem­ber 2023

A. Back­ground

The rel­e­vant back­ground of the com­plex dis­pute between mul­ti­ple par­ties can be sum­ma­rized as follows:

A.a., res­i­dent in Switzer­land with two sets of male twins (A.b., A.c., A.d., A.e.), found­ed a group of com­pa­nies (“Group”) under the flag of the French com­pa­ny X. to pro­vide oil explo­ration and drilling ser­vices (sec. A.a. and A.b.). Part of the Group is the Dutch com­pa­ny H. which holds the entire share cap­i­tal of the Dutch-reg­is­tered sub­sidiary F. (sec. A.c.). Fur­ther, Y. SA and Z. SA, two com­pa­nies incor­po­rat­ed in Pana­ma, belong to the Group (sec. A.d.). In 2005 and 2010, A.a. sold its share­hold­ings in X. and these pro­ceeds were trans­ferred to F. and H. (sec. A.e.).

In 2010 and 2011, five loan agree­ments between var­i­ous Group com­pa­nies were con­clud­ed which were all gov­erned by Swiss law and which con­tained an iden­ti­cal arbi­tra­tion agree­ment, pro­vid­ing for a seat in Gene­va and the appli­ca­tion of the Swiss Rules of Inter­na­tion­al Arbi­tra­tion (“Swiss Rules”) (sec. A.g.).

On 14 Jan­u­ary 2021, A.a. signed a debt assump­tion agree­ment which was also gov­erned by Swiss law and con­tained an arbi­tra­tion agree­ment iden­ti­cal to those in the above-men­tioned loan agree­ments (“Debt Assump­tion Agree­ment”) (sec. A.j.).

Since a long time, A.a.’s health sta­tus has been an issue. For instance, in April 2019, A.e. request­ed the Mon­e­gasque author­i­ties to insti­tute a pro­tec­tion mea­sure in favor of A.a. because the lat­ter had alleged­ly suf­fered from mem­o­ry loss and a dete­ri­o­ra­tion of his phys­i­cal and men­tal abil­i­ties since 2013. In Sep­tem­ber 2019, a Swiss Jus­tice of the Peace indi­cat­ed that she had heard A.a. who seemed to her to have retained his capac­i­ty of judge­ment. Sev­er­al cer­tifi­cates and med­ical reports were sub­se­quent­ly drawn up. In Sep­tem­ber 2021, a gen­er­al deputy­ship for A.a. was installed, in par­tic­u­lar due to a med­ical cer­tifi­cate of Jan­u­ary 2020 (where­as A.a. suf­fered from some for­get­ful­ness despite coher­ent speech, and need­ed help with most of the basic activ­i­ties of dai­ly life), and a let­ter of A.a.’s wife of April 2021 where­as A.a. could not remem­ber sign­ing trans­ac­tions worth tens of mil­lions of euros in Jan­u­ary 2021 (sec. A.k.).

In Feb­ru­ary 2021, F. and H. ini­ti­at­ed arbi­tra­tion pro­ceed­ings against A.a., A.b., A.c., A.d., A.e., Y. SA and Z. SA. On 31 Jan­u­ary 2023, the appoint­ed arbi­tral tri­bunal (“Arbi­tral Tri­bunal”) issued an award on juris­dic­tion (“Arbi­tral Award”), in which it declared itself com­pe­tent (sec. B.a.). The Arbi­tral Tri­bunal decid­ed that the arbi­tral agree­ments were valid, and in par­tic­u­lar dis­missed the objec­tion of lack of juris­dic­tion based on A.a.’s alleged inca­pac­i­ty of judge­ment at the time of sign­ing the Debt Assump­tion Agree­ment (sec. B.b.).

On 6 March 2023, Y. SA and Z. SA (« Appel­lants**”) request­ed the Swiss Fed­er­al Tri­bunal to set aside the Arbi­tral Award and to deter­mine that the Arbi­tral Tri­bunal is not com­pe­tent to hear the claims brought against them (sec. C.). The set­ting-aside request was based on Arti­cle 190.2 lit. b and e PILA (sec. 2). More specif­i­cal­ly, the Appel­lants complained

• based on Arti­cle 190.2 lit. b PILA that the Arbi­tral Tri­bunal had wrong­ly accept­ed its juris­dic­tion since A.a. was inca­pable of dis­cern­ment when he signed the Debt Assump­tion Agree­ment (sec. 7).
• based on Arti­cle 190.2 lit. e PILA that the sub­stan­tive pub­lic order which guar­an­tees the pro­tec­tion of civil­ly inca­pable peo­ple had been vio­lat­ed (sec. 8).

A.d. and A.e. request­ed the dis­missal of the appeal. A.a. agreed with the con­clu­sions of the appeal. A.b. and A.c. deferred to the courts as to the out­come of the appeal.

B. Deci­sion

With its deci­sion dat­ed 4 Sep­tem­ber 2023, the Swiss Fed­er­al Tri­bunal entire­ly dis­missed the appeal (sec. 10).

First, the Swiss Fed­er­al Tri­bunal exam­ined whether the Arbi­tral Tri­bunal vio­lat­ed Arti­cle 190.2 lit. b PILA since the lat­ter accept­ed its juris­dic­tion although the Appel­lants alleged that A.a. was inca­pable of judge­ment when sign­ing the Debt Assump­tion Agree­ment, and could thus not bind the Appel­lants (sec. 7).

The Swiss Fed­er­al Tri­bunal is free to exam­ine legal issues, includ­ing pre­lim­i­nary issues which deter­mine the juris­dic­tion or lack of juris­dic­tion of an arbi­tral tri­bunal. How­ev­er, it will only review the facts if one of the objec­tions pro­vid­ed in Arti­cle 190.2 PILA is raised against the said facts, or if the deci­sion of the low­er court gave rea­son to plead such new facts (Arti­cle 99.1 of the Swiss Fed­er­al Tri­bunal Act [“FTA”]) (sec. 7.1).

An arbi­tral tri­bunal has juris­dic­tion if the case is arbi­tra­ble under Arti­cle 177 PILA, the arbi­tra­tion agree­ment is valid in form and sub­stance under Arti­cle 178 PILA, and the case in dis­pute is cov­ered by this agree­ment (sec. 7.2).

Arbi­tra­bil­i­ty is a con­di­tion for the valid­i­ty of the arbi­tra­tion agree­ment, and hence for the com­pe­tence of the arbi­tra­tors. In its objec­tive sense, this term refers to cas­es that can be set­tled by arbi­tra­tion. In its sub­jec­tive sense, it refers to the capac­i­ty of the par­ties to enter into an arbi­tra­tion agree­ment. The civ­il capac­i­ty of a par­ty to an inter­na­tion­al arbi­tra­tion is assessed in the light of the law applic­a­ble under Arti­cle 33 et seq. PILA for nat­ur­al per­sons and Arti­cle 154 PILA for com­pa­nies (sec. 7.2.1).

From a for­mal point of view, an arbi­tra­tion agree­ment is valid if it is made in writ­ing or by any oth­er means that can be evi­denced by a text. The text must con­tain the essen­tial ele­ments of the arbi­tra­tion agree­ment (sec. 7.2.2).

The arbi­tral tri­bunal must also check the objec­tive and sub­jec­tive scope of the arbi­tra­tion agree­ment. It must deter­mine which dis­putes are cov­ered by the agree­ment and which par­ties are bound by it (Arti­cle 178.2 PILA) (sec. 7.2.3).

The arbi­tra­tion agree­ment is a con­tract in its own right, the fate of which is inde­pen­dent of that of the main con­tract, unless the par­ties have agreed oth­er­wise (Arti­cle 178.3 PILA). It fol­lows that the inva­lid­i­ty of the main con­tract does not nec­es­sar­i­ly imply the inva­lid­i­ty of the arbi­tra­tion agree­ment. There are, how­ev­er, a num­ber of sit­u­a­tions in which the arbi­tra­tion agree­ment shares the fate of the main con­tract (sec. 7.2.4).

Pur­suant to Arti­cle 35 PILA, the exer­cise of civ­il rights is gov­erned by the law of the domi­cile. Under Swiss law, a per­son who is of age and is capa­ble of judge­ment has the capac­i­ty to act (Arti­cle 13 of the Swiss Civ­il Code [“CC”]). The capac­i­ty of judge­ment is rel­a­tive and must thus be assessed in con­crete terms, in rela­tion to a giv­en act, depend­ing on its nature and impor­tance, and at the time of the act. The capac­i­ty of judge­ment is pre­sumed and it is up to the per­son claim­ing lack of capac­i­ty to prove one of the states of weak­ness described in Arti­cle 16 CC and the result­ing alter­ation of the capac­i­ty to act ratio­nal­ly (sec. 7.3).

In the Arbi­tral Award, the Arbi­tral Tri­bunal stressed that the ques­tion of whether A.a. could valid­ly sign the Debt Assump­tion Agree­ment on 14 Jan­u­ary 2021 depend­ed on whether he was capa­ble of judge­ment at that time. In its view, A.a.’s mem­o­ry prob­lems did not con­sti­tute suf­fi­cient cir­cum­stances to jus­ti­fy a rever­sal of the pre­sump­tion of dis­cern­ment. Fur­ther, the sub­mit­ted med­ical reports did not estab­lish that A.a. was inca­pable of judge­ment. Empha­siz­ing that the capac­i­ty of judge­ment is a rel­a­tive con­cept that must be assessed in rela­tion to a spe­cif­ic act, name­ly the sign­ing of an arbi­tra­tion agree­ment, the Arbi­tral Tri­bunal not­ed that A.a. had the habit and pref­er­ence of set­tling any prop­er­ty dis­putes with­in the Group through arbi­tra­tion. Fur­ther, the Arbi­tral Tri­bunal took a lawyers’ tes­ti­mo­ny into account pur­suant to which, at the rel­e­vant time, A.a. seemed capa­ble of under­stand­ing what he was sign­ing. The Arbi­tral Tri­bunal con­clud­ed that A.a. was capa­ble of judg­ment at the time of sign­ing the Debt Assump­tion Con­tract, at least with regard to the arbi­tra­tion agree­ment con­tained there­in (sec. 7.4).

The Appel­lants accused the Arbi­tral Tri­bunal of hav­ing dis­re­gard­ed the excep­tions to the auton­o­my of the arbi­tra­tion agree­ment, and of hav­ing exam­ined A.a.’s capac­i­ty for judge­ment not in rela­tion to the entire Debt Assump­tion Agree­ment, but only to the arbi­tra­tion agree­ment. They also crit­i­cized the Arbi­tral Tri­bunal for hav­ing dis­re­gard­ed the law in con­sid­er­ing that A.a. was capa­ble of judge­ment. They argued that A.a. was rather in a per­ma­nent state of men­tal dete­ri­o­ra­tion and his inca­pac­i­ty of judge­ment should have been pre­sumed. In the alter­na­tive, the Appel­lants claimed that the estab­lished facts should in any event had led the Arbi­tral Tri­bunal to rule that A.a. did not have the capac­i­ty of dis­cern­ment required to enter into the Debt Assump­tion Agree­ment (sec. 7.5).

In its deci­sion BGE 142 III 239, sec 3.2.1, the Swiss Fed­er­al Tri­bunal empha­sized that the prin­ci­ple of the auton­o­my of arbi­tra­tion agree­ments is not absolute, and that it is some­times sub­ject to excep­tions. For exam­ple, the arbi­tra­tion agree­ment may share the fate of the main con­tract where one par­ty lacks the capac­i­ty to con­tract or the pow­er to rep­re­sent the par­ty intend­ing to con­tract, or where the par­ty has entered into the main con­tract under a well-found­ed fear. It is one thing for an inca­pac­i­ty to con­tract to affect not only the valid­i­ty of a con­tract, but also that of the arbi­tra­tion agree­ment it con­tains. It is quite anoth­er that the nul­li­ty of the main con­tract on this ground manda­to­ri­ly affects the arbi­tra­tion agree­ment. How­ev­er, it can­not be accept­ed that a defect relat­ing to the capac­i­ty to con­tract, what­ev­er its ori­gin, would always result in the nul­li­ty of both the main con­tract and the arbi­tra­tion agree­ment. The prin­ci­ple of the auton­o­my of the arbi­tra­tion agree­ment remains the rule (Arti­cle 178.3 PILA). It fol­lows that an arbi­tra­tion agree­ment may be valid even if the main con­tract was not final­ized or is null and void (sec. 7.6.1).

It is wrong to assume that an inca­pac­i­ty manda­to­ri­ly has an impact on both the valid­i­ty of the main con­tract and the arbi­tra­tion agree­ment. Inso­far as capac­i­ty of judge­ment is a rel­a­tive con­cept that must be assessed in rela­tion to a spe­cif­ic act, depend­ing on its nature and impor­tance, it is indeed con­ceiv­able that a per­son may have the nec­es­sary dis­cern­ment to grasp the mean­ing and scope of a main con­tract, but not those of an arbi­tra­tion agree­ment, and vice ver­sa. Under these con­di­tions, the approach tak­en in the Arbi­tral Award to assess A.a.’s capac­i­ty of judge­ment in rela­tion to the arbi­tra­tion agree­ment insert­ed in the Debt Assump­tion Agree­ment does not appear to be con­trary to eder­al case law. It is there­fore not up to the Swiss Fed­er­al Tri­bunal to deter­mine whether A.a. had the nec­es­sary dis­cern­ment to sign the entire Debt Assump­tion Agree­ment, but only to exam­ine whether the Arbi­tral Tri­bunal cor­rect­ly assessed the capac­i­ty of judge­ment of the inter­est­ed par­ty in rela­tion to the arbi­tra­tion agree­ment con­tained in the said con­tract (sec. 7.6.1).

The Arbi­tral Tri­bunal con­sid­ered that the evi­dence on the record did not allow the con­clu­sion that there was a last­ing state of dete­ri­o­ra­tion of men­tal capac­i­ty due to ill­ness or age. The Swiss Fed­er­al Tri­bunal can­not review this fact. The Appel­lants had to prove A.a.’s inca­pac­i­ty of judge­ment at the time of sign­ing the dis­put­ed arbi­tra­tion agree­ment in Jan­u­ary 2021 but failed to do so. The Arbi­tral Tri­bunal did not over­look any rel­e­vant cir­cum­stances when assess­ing A.a.’s capac­i­ty of judge­ment, and Arti­cle 190.2 lit. b PILA was thus not vio­lat­ed (sec. 7.6.2).

Sec­ond, the Swiss Fed­er­al Tri­bunal exam­ined whether the Arbi­tral Tri­bunal vio­lat­ed Arti­cle 190.2. lit. e PILA (sec. 8). An award is con­trary to sub­stan­tive pub­lic pol­i­cy when it vio­lates fun­da­men­tal prin­ci­ples of sub­stan­tive law to such an extent that it can no longer be rec­on­ciled with the rel­e­vant legal order and sys­tem of val­ues. These prin­ci­ples include the pro­tec­tion of civil­ly inca­pac­i­tat­ed per­sons. It is not suf­fi­cient for an arbi­tral tri­bunal to find that a par­tic­u­lar ground infringes pub­lic pol­i­cy; it is the result of the award that must be incom­pat­i­ble with pub­lic pol­i­cy. The annul­ment of an inter­na­tion­al arbi­tral award on this ground is extreme­ly rare (sec. 8.1).

The Appel­lants main­tained that the Arbi­tral Award is incom­pat­i­ble with sub­stan­tive pub­lic pol­i­cy, as it ​“pro­tects a manœu­vre by which inter­est­ed par­ties made an old man suf­fer­ing from Alzheimer’s dis­ease sign a con­tract, with the aim of gen­er­at­ing a debt of almost EUR 80 mil­lion to the detri­ment of his com­pa­nies, and cre­at­ing arbi­tral juris­dic­tion over them to recov­er these amounts”. How­ev­er, this argu­men­ta­tion could not be suc­cess­ful since it was based on the wrong assump­tion that A.a. was not capa­ble of assess­ing the scope of the dis­put­ed arbi­tra­tion agree­ment he signed in Jan­u­ary 2021. Fur­ther, the Swiss Fed­er­al Tri­bunal held that it is not its task to rule on the valid­i­ty of the under­ly­ing con­tracts, but only to assess whether the Arbi­tral Tri­bunal wrong­ly declared itself com­pe­tent to hear the present dis­pute, which is not the case.

The Swiss Fed­er­al Tri­bunal con­clud­ed that the appeal must be dis­missed inso­far as it is admis­si­ble. The Appel­lants were there­fore ordered to pay the costs of the fed­er­al pro­ceed­ings and pay an indem­ni­ty for costs to A.d. and A.e.

C. Com­ments

The fol­low­ing aspects of the Swiss Fed­er­al Tribunal’s deci­sion may be worth highlighting:

First, although the Swiss Fed­er­al Tri­bunal has the final deci­sion on the ques­tion of juris­dic­tion,⁴ it should be not­ed that there is an impor­tant lim­i­ta­tion to the exam­i­na­tion of the juris­dic­tion with unre­strict­ed pow­er.⁵ In prin­ci­ple, the Swiss Fed­er­al Tri­bunal must base its deci­sion on the facts of the case as deter­mined by the arbi­tral tri­bunal. Only in excep­tion­al cas­es, where anoth­er ground for chal­lenge based on Arti­cle 190.2 PILA (for instance, if the fac­tu­al find­ings of the arbi­tral tri­bunal were made in breach of the right to be heard) or nova with­in the mean­ing of Arti­cle 99.1 FTA exist, anoth­er fac­tu­al basis might be con­sid­ered in the fed­er­al court pro­ceed­ings. A par­ty chal­leng­ing an award on juris­dic­tion should thus care­ful­ly check whether it should addi­tion­al­ly attack the fac­tu­al basis which is rel­e­vant for the juris­dic­tion, or whether nova exist. Oth­er­wise, the Swiss Fed­er­al Tri­bunal only assess­es the cor­rect appli­ca­tion of the law.

Sec­ond, the deci­sion of the Swiss Fed­er­al Tri­bunal presents a good check­list for arbi­tra­tors when decid­ing about the juris­dic­tion (sec. 7.2). In par­tic­u­lar, juris­dic­tion is giv­en when

• the case is arbi­tra­ble in an objec­tive and sub­jec­tive sense under Arti­cle 177 PILA (sec. 7.2.1 and 7.2.3),
• the arbi­tra­tion agree­ment is valid in form and sub­stance under Arti­cle 178 PILA (sec. 7.2.2),
• the case is cov­ered by the arbi­tra­tion agree­ment (sec. 7.2.3).

Third, Swiss arbi­tra­tion prac­ti­tion­ers should keep in mind the prin­ci­ple of Arti­cle 178.3 PILA pur­suant to which the valid­i­ty of an arbi­tra­tion agree­ment may not be con­test­ed on the grounds that the main con­tract is invalid (autonomy/​separability of arbi­tra­tion agree­ment).

In its pre­vi­ous deci­sion BGE 142 III 239, sec. 3.2.1, the Swiss Fed­er­al Tri­bunal explained that in a num­ber of sit­u­a­tions the arbi­tra­tion agree­ment shares the fate of the main con­tract and that sit­u­a­tions of this kind (“iden­ti­ty of defect”), arise, for exam­ple, when a par­ty lacks the capac­i­ty to con­tract. In the present case, the Fed­er­al Tri­bunal now took the oppor­tu­ni­ty to clar­i­fy its jurispru­dence. If some­one lacks the capac­i­ty to act ratio­nal­ly by virtue of being under age, this will like­ly affect both the arbi­tra­tion agree­ment and the main con­tract. How­ev­er, if the in capac­i­ty results from a men­tal dis­abil­i­ty or dis­or­der where the capac­i­ty of judge­ment has to be assessed in rela­tion to a spe­cif­ic act and depends on its nature and impor­tance, one has to sep­a­rate­ly eval­u­ate the valid­i­ty of the arbi­tra­tion agree­ment and the main contract.

In par­tic­u­lar for a busi­ness per­son who has reg­u­lar­ly includ­ed arbi­tra­tion agree­ments in its con­tracts or might even pre­vi­ous­ly dealt with arbi­tra­tion pro­ceed­ings, it might still be pos­si­ble to grasp the mean­ing and con­se­quences of an arbi­tra­tion agree­ment while it would then be the task of the com­pe­tent arbi­tral tri­bunal to decide whether the busi­ness per­son also had the capac­i­ty to con­clude the main con­tract. As the Swiss Fed­er­al Tri­bunal held, the oppo­site sce­nario might also be pos­si­ble where a per­son might have the capac­i­ty to con­clude the main con­tract but not the arbi­tra­tion agree­ment. This sce­nario is like­ly more unusu­al. How­ev­er, for instance if a per­son had nev­er dealt with arbi­tra­tion before but the main con­tract is very sim­ple (for instance sale of an item), it might be pos­si­ble that an arbi­tra­tion agree­ment was not valid­ly con­clud­ed but the com­pe­tent state court then decides that the main con­tract was valid­ly agreed.

The take-away for par­ties is clear: When attack­ing the capac­i­ty of a per­son, one should on the one hand set out why this per­son was no capa­ble of con­clud­ing the arbi­tra­tion agree­ment. On the oth­er hand, in a sep­a­rate step, the rea­sons why the main con­tract was not valid­ly con­clud­ed should be presented.

Fourth, the Swiss Fed­er­al Tri­bunal cor­rect­ly con­firmed that the pro­tec­tion of civil­ly inca­pable per­sons should be part of the sub­stan­tive pub­lic pol­i­cy. How­ev­er, with its empha­sis that the annul­ment of an inter­na­tion­al arbi­tral award based on Arti­cle 190.2 lit. e PILA ​“is extreme­ly rare”, the Swiss Fed­er­al Tri­bunal might have indi­cat­ed that even if an inca­pable per­son signed an arbi­tra­tion agree­ment, the result of an arbi­tra­tion award hold­ing that the arbi­tral tri­bunal is com­pe­tent to hear the case might not have vio­lat­ed pub­lic pol­i­cy. In the present case, the Swiss Fed­er­al Tri­bunal could leave the ques­tion open since the rel­e­vant per­son was capa­ble to sign and suf­fi­cient­ly under­stand the arbi­tra­tion agreement.

Fifth, it is remark­able in which detail the Swiss Fed­er­al Tri­bunal pre­sent­ed the fac­tu­al back­ground of the case (sec. A., B., and C.). Not only did the Swiss Fed­er­al Tri­bunal reveal many com­mer­cial details of the trans­ac­tions (which were not rel­e­vant for the out­come of the present appeal) and details about A.a.’s per­son­al health sta­tus, it also not­ed that A.a. had two male sets of twins. This is extreme­ly rare and might give, togeth­er with the oth­er details about A.a. and his busi­ness activ­i­ties, at least for busi­ness insid­ers a clue about the iden­ti­ty of that person.

Pur­suant to Arti­cle 44.1 of the Swiss Rules, as a prin­ci­ple, the par­ties under­take to keep con­fi­den­tial all awards and orders as well as all mate­ri­als sub­mit­ted by anoth­er par­ty in the frame­work of the arbi­tra­tion pro­ceed­ings. Fur­ther, Arti­cle 44.3 Swiss Rules ensures that no award or deci­sion of the arbi­tral tri­bunal may be pub­lished, whether in its entire­ty or in the form of excerpts or a sum­ma­ry, unless all par­ties agree. In par­tic­u­lar in light of the low suc­cess rate of appeals to the Swiss Fed­er­al Tri­bunal, a par­ty assess­ing whether it should file an appeal against an arbi­tral award should also con­sid­er whether it wants to leave the pre­vi­ous con­fi­den­tial frame­work of the arbi­tral pro­ceed­ings and allow the pub­lic to gain access to the com­mer­cial details of a dis­pute, per­son­al health details and the course and out­come of the arbi­tral pro­ceed­ings by fil­ing an appeal to the Swiss Fed­er­al Tribunal.