Austria: The New Swiss Rules 2021: Redefining Institutional Arbitration In Switzerland

The Swiss Chambers' Arbitral Institution ("SCAI") recently released its new Swiss Rules of International Arbitration ("Swiss Rules") 2021, which came into force on 1 June 2021. The new Rules introduce modifications, which add and build upon the previous 2012 Rules. Some of the significant developments include the rebranding of SCAI, technological matters, the management of multi-party and multi-contract disputes and issues pertaining to effective case management.

This article highlights some major changes to the Swiss Rules 2021.

Rebranding from SCAI to Swiss Arbitration Centre

In addition to new Rules entering into force from 1 June 2021, the SCAI will be rebranded to the Swiss Arbitration Centre. Despite this significant institutional change, the new Rules specify that the arbitration clauses referring to SCAI would remain valid and binding. Such clauses will be recognized and applied by the Swiss Arbitration Centre.

The rebranding is coupled with the increased cooperation between the Swiss Arbitration Association ("ASA") and the new Swiss Arbitration Centre. The ASA recently unveiled the new website (www.swissarbitration.org), which is a hub for every resource relating to arbitration in Switzerland.

The rebranding taken together with the new website will significantly bolster the position of Switzerland (Geneva and Zurich) as one of the most preferred seats of arbitration.

Embracing the technological revolution in arbitration

In line with the acceptance of technology in arbitration by other institutions, the Swiss Rules include significant additions to its previous version:

Article 3(1) now permits the notice of arbitration to be submitted to the Secretariat at any of the addresses, "postal or electronic". Further, no hard copies of the notice of arbitration are required if the claimant agrees for the respondent to be notified by e-mail.

Moreover, the new article 27(2) allows hearings to be conducted in person or remotely by videoconference or other appropriate means. While the 2012 Rules did provide for virtual recording of evidence,¹ they did not explicitly provide for virtual hearings.

Robust framework to manage multi-party and multi-contract situations

It is also worth noting that the 2012 Swiss Rules already incorporated provisions on the effective management of multi-party and multi-contract disputes, inter alia, by reference to the procedural mechanisms of intervention in arbitration.²

The 2021 Rules recognize cross-claim, joinder, intervention³ and consolidation⁴ separately.

With the growing complexity of international transactions, these provisions will provide parties greater clarity on how to navigate multi-jurisdictional disputes involving different contracts and multiple parties more efficiently and expeditiously.

Effective Case Management

Another significant addition to the 2021 Rules is Article 19, which concerns the organization and conduct of proceedings. Notably, the new Article 19(2) specifically requires parties and tribunals to hold a case management conference ("CMC") as soon as possible after the receipt of the file from the Secretariat. According to Article 19(2), the CMC should include discussions on "the organization of the arbitration proceedings, including rules of procedure, as well as issues of data protection and cybersecurity to the extent needed to ensure an appropriate level of compliance and security."

In light of increasingly complex arbitrations, the organization of a CMC allows tribunal to gain a better and more comprehensive overview of the claims, rights and obligations involved in the case at hand. It also offers parties and tribunals an opportunity to discuss matters relating to cybersecurity at the very outset of the proceeding. The addition of the CMC to the new Rules is a testament to the Swiss Arbitration Centre's commitment to efficient management of arbitration proceedings.

Conclusion

By introducing timely amendments, the new Swiss Rules 2021 have now joined several other internationally renowned institutions such as the ICC, the LCIA, ICDR, etc. in their drive for procedural efficiency, such as by facilitating the online management of arbitration proceedings.

The new Rules are consistent with current international best practices and are likely to allow the Swiss Arbitration Centre to further strengthen its position as one of the major arbitral institutions in the DACH region and the international arbitration market at large.

Footnotes

1. Swiss Rules 2012, art. 25(4).

2. Swiss Rules 2004 and 2012, art. 4(2); Bernard Hanotiau, Complex Arbitrations: Multi-party, Multi-contract, Multi-issue – A comparative Study (2nd ed, Kluwer Law International 2020) 313.

3. Swiss Rules 2021, art. 6.

4. Swiss Rules 2021, art. 7.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.