Inadmissibility of an appeal against an arbitral award due to subsequently discovered evidence

Facts

The People’s Republic of China (defendant, applicant) filed an appeal for revision with the Federal Supreme Court on 23 January 2024 against an interim decision of an arbitral tribunal seated in Geneva. On 30 December 2021, the arbitral tribunal had confirmed its jurisdiction in an investment arbitration proceedings initiated by the claimant (respondent) based on the bilateral investment protection agreement between the United Kingdom and the People’s Republic of China dated 15 May 1986. The claimant alleged that the defendant had impaired its investment in the company B. Ltd. by expropriating land rights in Shaanxi Province without compensation, thereby violating the agreement.

The defendant sought the annulment of the decision on jurisdiction and the referral of the matter back to the arbitral tribunal. It based its appeal for revision on a written confession by a witness (Mr C.) dated 9 October 2023, which had been made after the interim decision of 30 December 2021. This confession contradicted Mr C.’s earlier witness statements of 13 August 2020 and 28 October 2020, according to which the claimant had acquired its shares in B. Ltd. in an illegal manner. The defendant argued that the confession proved a fact that existed prior to the decision on jurisdiction and was therefore a valid ground for revision under Art. 190a para. 1 lit. a PILA.

Considerations

The Federal Supreme Court examined whether the subsequently discovered confession of 9 October 2023 could constitute a ground for revision under Art. 190a para. 1 lit. a PILA. The provision stipulates that a revision is only possible on the basis of facts or evidence that existed prior to the decision to be revised (so-called false novae).

The defendant argued that the confession related to a fact that existed prior to the decision on jurisdiction and was therefore admissible as a ground for revision despite its subsequent discovery. It relied on an academic opinion that considers such an interpretation possible. The Federal Supreme Court rejected this argument. It emphasised that the clear wording of Art. 190a para. 1 lit. a PILA precludes a revision if the evidence was only discovered after the decision, even if it is intended to prove a pre-existing fact. This interpretation is supported by the legislative materials and the case law of the Federal Supreme Court, in particular BGE 149 III 277 and other rulings such as 4A_406/2024 or 4A_69/2022.

The Federal Supreme Court noted that a revision under Art. 190a para. 1 lit. a PILA is only admissible if the evidence already existed prior to the decision or could have been lawfully submitted during the main…