Facts
On April 12, 1974, the Algerian S. and the English K. Ltd. concluded a contract for the execution of oil drilling operations in Algeria. The contract provided that an ICC arbitral tribunal with its seat in Zurich would decide on disputes, with Algerian law being applicable. K. imported extensive production facilities and equipment to Algeria and commenced its operations there. Due to numerous difficulties, it ceased its operations. Except for four drilling rigs, the equipment remained in Algeria and was lost to K., for which it held S. responsible.
On June 2, 1986, K. initiated ICC arbitration proceedings against S. K. asserted claims for performance, damages, and interest at the Zurich ICC arbitral tribunal amounting to a total of US$ 48,618,971.--. S. filed a counterclaim, inter alia, for payment of $ 3,418,330.70 and $ 577,912.14 in default interest. By judgment of April 23, 1990, the arbitral tribunal upheld the claim for $ 14,235,293.63 and dismissed the counterclaim.
Considerations
The defendant S. unsuccessfully challenges the arbitral award by way of a constitutional appeal. The Federal Court holds that the parties did not agree on a valid waiver of legal remedies pursuant to Art. 192 para. 1 PILA. Such a waiver requires that the parties clearly express their intention to waive the legal remedy by referring to it and waiving it.
Furthermore, the Federal Court states that Art. 190 para. 2 lit. c PILA not only regulates the case where the arbitral…