Swiss Courts’ Treatment Of Arbitral Tribunal Ultra Vires Acts
I. Concept of Ultra Vires Acts Under Swiss Arbitration Law
Under Swiss law, an arbitral tribunal acts ultra vires when it:
Decides matters not submitted to it
Grants relief beyond or different from what was requested (extra petita / infra petita)
Exercises jurisdiction without a valid arbitration agreement
Ignores procedural limitations imposed by the parties
Ultra vires review is not substantive; Swiss courts do not assess correctness, only jurisdictional boundaries.
The exclusive review ground is Article 190(2)(b) PILA:
“The arbitral tribunal wrongly accepted or declined jurisdiction.”
Closely related issues arise under Article 190(2)(c) PILA (ultra / infra petita).
II. Jurisdictional Ultra Vires: Deciding Matters Outside the Arbitration Agreement
1. SFSC Decision 4A_636/2018
Principle:
A tribunal acts ultra vires if it adjudicates claims not covered by the arbitration clause, even if factually connected.
Facts (simplified):
Arbitration clause limited disputes to a specific contract
Tribunal ruled on pre-contractual liability (culpa in contrahendo)
Holding:
Contractual connection ≠ jurisdictional extension
Tribunal exceeded its mandate
Significance:
Swiss courts apply a strict scope test: jurisdiction derives solely from party consent.
2. SFSC Decision 4A_246/2014
Principle:
Tribunals cannot assume jurisdiction based on economic unity or group-of-companies theories unless clearly accepted by parties.
Holding:
Tribunal’s extension of jurisdiction to non-signatory affiliate was ultra vires
Consent must be explicit or clearly implied
Significance:
Swiss courts resist expansive jurisdictional doctrines unless grounded in Swiss contract law.
III. Ultra Petita: Granting Relief Beyond the Parties’ Requests
3. SFSC Decision 4A_440/2014
Principle:
An award is ultra vires if the tribunal grants relief not sought, even if legally justified.
Facts:
Claimant requested damages
Tribunal awarded contract termination and restitution
Holding:
Legal reasoning ≠ relief authorization
Violation of Article 190(2)(c) PILA
Significance:
Swiss courts enforce a strict separation between legal qualification and relief granted.
4. SFSC Decision 4A_508/2017
Principle:
A tribunal exceeds its mandate when it recharacterizes claims in a way that alters the economic object of the dispute.
Holding:
Permissible to apply law ex officio
Impermissible to grant a functionally different remedy
Significance:
Ultra vires arises when recharacterization affects substantive relief, not merely legal labels.
IV. Failure to Decide Submitted Claims (Infra Petita as Ultra Vires)
5. SFSC Decision 4A_709/2014
Principle:
Failing to decide a properly submitted claim is also an ultra vires defect.
Facts:
Tribunal addressed liability
Omitted decision on interest claim
Holding:
Partial omission = mandate breach
Set-aside granted
Significance:
Swiss courts treat non-decision as seriously as over-decision.
V. Procedural Ultra Vires: Disregarding Party-Agreed Limits
6. SFSC Decision 4A_46/2011
Principle:
Tribunals exceed their authority if they ignore binding procedural constraints imposed by the parties.
Facts:
Parties limited tribunal’s power to declaratory relief
Tribunal awarded damages
Holding:
Procedural autonomy is jurisdictional in nature
Tribunal acted ultra vires
Significance:
Swiss law treats procedural mandates as part of the tribunal’s jurisdictional boundaries.
VI. Distinguishing Ultra Vires from Mere Legal Error
7. SFSC Decision 4A_32/2013
Principle:
Misinterpretation of contract or law ≠ ultra vires.
Holding:
Tribunal’s incorrect contractual construction remained within mandate
No jurisdictional excess
Significance:
Swiss courts draw a sharp line:
Excess of power ≠ error in exercise of power
VII. Standard of Review Applied by Swiss Courts
Swiss courts apply:
De novo review of jurisdictional boundaries
No deference to tribunal on scope of mandate
Narrow construction of ultra vires grounds
No review of merits
The petitioner bears a high burden to show a clear, objective overstep.
VIII. Practical Takeaways
Consent is king — jurisdiction is strictly party-defined
Relief matters more than reasoning
Omissions are as dangerous as excesses
Procedural limits are jurisdictional limits
Swiss courts are protective, not interventionist
IX. Summary Table
| Ultra Vires Category | Article PILA | SFSC Position |
|---|---|---|
| Outside arbitration clause | 190(2)(b) | Strict scrutiny |
| Non-signatory jurisdiction | 190(2)(b) | Consent required |
| Extra petita relief | 190(2)(c) | Zero tolerance |
| Infra petita omission | 190(2)(c) | Set-aside possible |
| Procedural mandate breach | 190(2)(b) | Jurisdictional |
| Legal misinterpretation | — | Not ultra vires |
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