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Min­i­mal­gar­antie ver­sus Ver­fahrensvere­in­barung,
Com­men­tary by Simon Gabriel on Swiss Fed­er­al Tri­bunal deci­sion 4A_342/2015 on April 26, 2016

The present deci­sion con­cerns an agreed lim­i­ta­tion of sub­mis­sions in arbi­tral pro­ceed­ings (i.e. only one exchange of briefs) against the back­ground of the right to be heard and the right to con­tra­dic­to­ry pro­ceed­ings. Due to its high rel­e­vance, it will be endorsed in the offi­cial­ly pub­lished selec­tion of deci­sions by the Fed­er­al Tribunal.

In a nut­shell, the Fed­er­al Tri­bunal found as follows:

• The Euro­pean Con­ven­tion on Human Rights (and the right of reply in par­tic­u­lar) is not direct­ly applic­a­ble to inter­na­tion­al arbi­tra­tion pro­ceed­ings with seat in Switzerland.
• A delib­er­ate pro­ce­dur­al agree­ment of the par­ties, which lim­its the sub­mis­sions to one exchange of briefs, can be valid and bind­ing. In the present case, the strict appli­ca­tion of such a pro­ce­dur­al agree­ment by the arbi­tral tri­bunal did not infringe the rights of the claimant who had no oppor­tu­ni­ty to reply to some new evi­dence sub­mit­ted by respon­dent in the state­ment of defence.
• The Fed­er­al Tri­bunal not­ed that this con­stel­la­tion was fore­see­able for the claimant and that it would be against the prin­ci­ple of good faith to come back to the agree­ment after both par­ties had been enti­tled to trust there­on (see para. 35 of the attach­ment for fur­ther ref­er­ence on this aspect).