Facts
The Federal Court had to decide on an application for revision by [A. GmbH] (the applicant) against an arbitral award of the Geneva Arbitration Court. The arbitral award concerned a contract between the applicant and [B.] SpA (the respondent) regarding the exclusive distribution right for products of the [X.] brand in Austria. The respondent had terminated the contract for good cause, as the applicant had not achieved the sales targets and had represented other brands that were in direct competition with the [X.] brand.
The applicant had filed an action for arbitration with the Arbitration Court, seeking a declaration that the contract was still valid and that the termination was ineffective. The Arbitration Court dismissed the action and found that the respondent had validly terminated the contract. The applicant filed an application for revision against this decision, claiming that it had discovered new facts and evidence that could influence the arbitral award.
Considerations
The Federal Court examined the application for revision and came to the conclusion that the applicant had not submitted the new facts and evidence in a timely manner. The applicant had claimed that the respondent had already been aware of the applicant's representation of the [Y.] brand on November 17, 1998, and not only on May 10, 1999, as the Arbitration Court had assumed. However, the Federal Court found that the applicant could have submitted this fact during the arbitration proceedings, as it had been asked in writing by the respondent about the distribution of the [Y.] brand.
The Federal Court also found that the applicant had not submitted the second new fact, namely the separation of the former business partner and co-owner of the respondent from the respondent, in a timely manner. The applicant had claimed that the separation had not been due to the enforcement of the exclusivity policy, as the Arbitration Court had assumed, but because the former business partner had not agreed with the…