Decision on the Jurisdiction of the Arbitral Tribunal pursuant to Art. 176 para. 2 PILA

Facts

S. AG, a German company, filed a nullity appeal against an interim arbitral award of the arbitral tribunal with the High Court of the Canton of Zurich. The High Court denied its jurisdiction under the Concordat on Arbitration, but affirmed a prorogation pursuant to Art. 191 para. 2 PILA and dismissed the appeal. S. AG challenged the decision of the High Court by way of a constitutional appeal, which was partially dismissed by the Federal Supreme Court.

Considerations

The Federal Supreme Court held that the question of whether a valid choice of law within the meaning of Art. 176 para. 2 PILA has been made can be reviewed by way of a constitutional appeal pursuant to Art. 84 para. 1 lit. d OG. However, such a choice of law is not present here, as the parties have not agreed to the exclusion of federal law or the exclusive application of cantonal law on arbitration.

The Federal Supreme Court further elaborated that in the case of a prorogation pursuant to Art. 191 para. 2 PILA, the grounds for appeal under Art. 190 para. 2 PILA can no longer be submitted to the Federal…