Dismissal of appeal due to lack of duty to investigate

Facts

Parties: [A. GmbH] (Applicant) against [B.] Limited (Respondent).

Facts: The applicant requested the revision of an arbitral award dated December 23, 2014, which condemned the respondent to pay USD 69,112,500.-- plus interest. The revision is based on the alleged discovery of a ground for challenge against arbitrator Simon Rainey due to a conflict of interest.

Proceedings: The arbitration proceedings were conducted under the Swiss Rules of International Arbitration. The arbitral award was rendered on December 23, 2014. The applicant requested the revision based on an alleged conflict of interest of the arbitrator Simon Rainey.

Considerations

The Federal Supreme Court first examined its jurisdiction and the applicability of the new provisions on the revision of international arbitral awards under Art. 190a PILA. PILA. It found that the new provisions also apply to revision proceedings filed after January 1, 2021, even if the challenged arbitral award was rendered before that date.

The applicant based its application for revision on the discovery of a ground for challenge against the arbitrator Simon Rainey due to an alleged conflict of interest. The Federal Supreme Court examined whether this ground for challenge was discovered only after the conclusion of the arbitration proceedings despite due diligence. It found that the applicant could and should have conducted the necessary investigations already during the arbitration proceedings. The alleged connections between the arbitrator and the respondent could have been raised during the arbitration proceedings.

The Federal Supreme Court held that the applicant must be attributed the omissions of the respondent regarding their duty to investigate. Moreover, the respondent…