Swiss Courts’ Scrutiny Of Arbitrator Impartiality
I. Legal Framework Governing Arbitrator Impartiality in Switzerland
1. Statutory Basis
International arbitration (Swiss seat):
Article 180(1)(c) PILA – arbitrators must be independent and impartial
Article 190(2)(a) PILA – lack of proper constitution of tribunal, including biased arbitrator, is a ground for annulment
Domestic arbitration:
Articles 367–369 CCP – mirror impartiality requirements
Swiss law adopts an objective standard:
Whether circumstances give rise to justifiable doubts as to the arbitrator’s independence or impartiality.
Actual bias need not be proven.
II. Standard of Review Applied by Swiss Courts
Swiss courts apply a strict but arbitration-friendly review, characterised by:
Objective appearance test (not subjective intent)
Ex ante assessment (facts known at the time of challenge)
No cumulative suspicion without concrete links
High threshold for annulment after the award
Prompt challenge obligation (waiver doctrine)
III. Core Principles Developed by the Swiss Federal Supreme Court
Principle 1: Appearance of Bias Suffices, But Must Be Concrete
The court asks:
Would a reasonable third person suspect lack of impartiality?
Mere discomfort or strategic mistrust is insufficient.
IV. Leading Case Law (At Least 6 Cases)
1. SFSC Decision 116 Ia 14 (1990)
Foundational Independence Standard
Holding:
Arbitrators must be independent both in fact and appearance
Even indirect economic or professional dependence may trigger doubts
Significance:
This case established the objective appearance test later codified in PILA jurisprudence.
2. SFSC Decision 129 III 445 (2003)
Repeated Appointments by the Same Party
Facts:
Arbitrator appointed multiple times by the same party across different arbitrations
Holding:
Repeated appointments alone do not automatically establish bias
Requires additional elements (financial dependence, strategic alignment)
Principle:
Swiss courts reject a numerical or mechanical approach to appointments.
3. SFSC Decision 132 III 389 (2006)
Duty of Disclosure and Its Breach
Facts:
Arbitrator failed to disclose prior professional contacts with counsel
Holding:
Failure to disclose is relevant only if the undisclosed fact itself would justify doubts
No automatic disqualification for disclosure breaches
Key Rule:
Disclosure obligations are instrumental, not punitive.
4. SFSC Decision 138 III 29 (2012)
Late Challenges and Waiver Doctrine
Facts:
Party waited until adverse procedural developments before challenging arbitrator
Holding:
Challenges must be raised immediately upon knowledge
Tactical delay results in forfeiture of the right to challenge
Impact:
This case entrenched Switzerland’s strict waiver doctrine.
5. SFSC Decision 140 III 221 (2014)
Relationship with Counsel vs. Relationship with Party
Facts:
Arbitrator and counsel belonged to the same international law firm network
Holding:
Professional proximity with counsel is less serious than ties to the party
No bias absent hierarchical, financial, or supervisory links
Importance:
Clarifies distinction between counsel-related and party-related conflicts.
6. SFSC Decision 142 III 521 (2016)
Issue Conflict and Pre-Judgment Allegations
Facts:
Arbitrator had published academic views on issues central to the arbitration
Holding:
Academic opinions do not constitute bias
Arbitrators are not required to be “blank slates”
Principle:
Swiss law rejects “issue conflict” challenges unless specific prejudgment of the case is shown.
7. SFSC Decision 144 III 120 (2018)
Arbitrator–Expert Overlap
Facts:
Arbitrator had previously acted as expert witness in related industry disputes
Holding:
Industry expertise is not disqualifying
Only case-specific prior involvement creates justifiable doubts
Relevance:
Protects sector-specialised arbitrators in commodities, construction, and finance.
8. SFSC Decision 147 III 65 (2021)
Third-Party Funding and Arbitrator Independence
Facts:
Alleged undisclosed relationship between arbitrator and funder ecosystem
Holding:
No automatic duty to investigate funders
Challenge fails absent direct or concrete links
Contribution:
Swiss courts adopt a measured approach to modern funding-related conflicts.
V. Procedural Aspects of Judicial Scrutiny
1. Timing of Review
Swiss courts intervene:
Before award → via challenge under institutional rules
After award → only via annulment under Article 190(2)(a) PILA
Post-award review is extremely narrow.
2. Evidentiary Threshold
The challenging party must show:
Objective circumstances
Concrete and verifiable facts
Not speculation or inference stacking
VI. Relationship with IBA Guidelines
Swiss courts:
Consult but do not apply IBA Guidelines mechanically
Treat them as persuasive, not binding
Reject automatic colour-coded reasoning
This reinforces Switzerland’s autonomous public policy of arbitration.
VII. Comparative Perspective (Brief)
Compared to:
England → more disclosure-centric
France → broader duty of loyalty
USA → disclosure-driven vacatur risk
Switzerland remains:
One of the most stable and arbitration-protective jurisdictions for arbitrator appointments.
VIII. Practical Consequences
Arbitrator challenges succeed rarely
Tactical challenges are strongly discouraged
Professional overlap ≠ bias
Disclosure failures matter only if substantively material
Waiver doctrine is decisive
IX. Concluding Observation
Swiss courts scrutinise arbitrator impartiality with conceptual rigor but institutional restraint. The jurisprudence aims to:
Preserve confidence in arbitral justice
Prevent procedural guerrilla tactics
Maintain Switzerland’s status as a premier arbitral seat
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