On 1 January 2023, the revised Swiss Code of Obligations (“CO“) will enter into force. The revised act includes a new article 697n, which expressly allows Swiss corporations (and by reference also limited partnerships and limited liability companies) to include a statutory arbitration clause in their articles of association.
The statutory arbitration clause, by default, applies to all corporate law disputes and is binding on the company itself, the company’s governing bodies and its members as well as the company’s shareholders. The specifics of the arbitration proceedings may, and to a certain extent must, be regulated in the articles of association, either directly or by reference to institutional rules.
In the light of this new provision, the Swiss Arbitration Center has recently published “Supplemental Swiss Rules for Corporate Law Disputes” (“Supplemental Swiss Rules“), which will supplement the Swiss Rules of International Arbitration (“Swiss Rules“) for the purpose of administering and conducting arbitration proceedings in relation to corporate law disputes as provided for under the new art. 697n CO.
The Supplemental Swiss Rules will apply to all arbitration proceedings that regard a corporate law dispute and are initiated on or after 1 January 2023 pursuant to a statutory arbitration clause that is contained in the articles of association of a corporate entity and refers to the Swiss Rules. The main points regulated under these Supplemental Swiss Rules are the following:
- The Supplemental Swiss Rules propose a Model Statutory Arbitration Clause, which contains both recommended content required for a valid statutory arbitration clause as well as optional content. The suitability of such proposed content will naturally depend on the particular circumstances of each company, so that companies that wish to introduce a statutory arbitration clause are nevertheless well advised to carefully consider its intended content and seek legal advice if needed.
- The Supplemental Swiss Rules further complement the existing Swiss Rules with additional rules that account for the specificities of corporate law disputes. They also implement the minimum requirements that the new law imposes for certain corporate law disputes that can lead to an arbitral award having direct legal effects not only towards the parties but also other persons (so-called “Affected Persons“). In this type of disputes (e.g., disputes that regard the company’s existence or dissolution or the validity or legality of the resolutions of its governing bodies), Affected Persons must be notified about the commencement and the termination of the arbitration and obtain the possibility to submit comments on the appointment of the arbitral tribunal and/or participate in the arbitration proceedings in a capacity other than an additional party.
- Finally, the Supplemental Swiss Rules amplify the arbitral tribunal’s discretion in dealing with requests for interim and emergency relief to ensure that such relief is granted in a most efficient and/or effective manner.
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