Swiss Rules On Tribunal Deliberation Secrecy
I. Concept and Importance of Deliberation Secrecy in Swiss Arbitration
1. What Is Tribunal Deliberation Secrecy?
Tribunal deliberation secrecy refers to the confidentiality of discussions, votes, reasoning exchanges, and internal decision-making processes among arbitrators after the close of submissions and hearings.
Under Swiss law, deliberation secrecy:
Protects arbitrator independence
Ensures freedom of opinion and dissent
Prevents post-award scrutiny of internal reasoning
Preserves the finality of awards
It applies regardless of whether:
The arbitration is institutional or ad hoc
The tribunal is unanimous or divided
A dissenting opinion is issued (unless agreed otherwise)
II. Legal Sources of Deliberation Secrecy in Switzerland
Swiss law does not codify deliberation secrecy in a single provision, but it arises from several converging principles:
Art. 182(1) PILA – tribunal autonomy over procedure
Art. 190(2) PILA – limited annulment grounds (no review of deliberations)
Art. 2 CC (Good Faith) – protection of procedural integrity
Implicit confidentiality of arbitration
Judicial analogy to court deliberation secrecy
Deliberation secrecy is treated as a structural principle, not a mere ethical guideline.
III. Scope of Deliberation Secrecy
Covered by Secrecy
✔ Draft awards
✔ Internal emails and discussions
✔ Voting processes
✔ Preliminary views and compromises
✔ Reasons for majority/minority positions
Not Covered
✘ The final award
✘ Dissenting opinions expressly authorized
✘ Objective procedural irregularities (e.g., absence of deliberation)
IV. Swiss Federal Supreme Court Case Law
1. SFSC Decision BGE 130 III 66
Deliberation Secrecy as a Component of Arbitrator Independence
Principle:
Arbitrators must be able to deliberate freely, without fear of external scrutiny.
Holding:
Internal deliberations are not subject to party review
Challenges cannot be based on alleged internal disagreements
Significance:
Foundational authority affirming absolute protection of deliberations.
2. SFSC Decision BGE 136 III 605
No Inquiry Into How Arbitrators Reached Their Decision
Principle:
Courts may not investigate the internal reasoning process of the tribunal.
Holding:
Allegations concerning how arbitrators convinced one another are inadmissible
Only the result, not the path, is reviewable
Importance:
Frequently cited to reject attempts to pierce deliberation secrecy.
3. SFSC Decision 4A_150/2012
Right to Be Heard Ends With Closure of Submissions
Principle:
Once deliberations begin, parties have no procedural entitlement to participate or influence internal discussions.
Holding:
No right to comment on draft reasoning
No breach of due process from internal exchanges
Relevance:
Clarifies the temporal boundary between party participation and tribunal autonomy.
4. SFSC Decision 4A_404/2017
Majority Deliberation and Minority Objections
Principle:
A dissenting arbitrator may disagree with the outcome, but deliberation secrecy remains intact.
Holding:
Internal disagreements do not affect award validity
No duty to disclose voting details
Key Point:
Protects majority rule and shields minority deliberations.
5. SFSC Decision BGE 138 III 374
Good Faith and Protection of the Deliberative Process
Principle:
Parties act contrary to good faith when attempting to obtain insight into deliberations.
Holding:
Requests for disclosure of deliberation materials rejected
Procedural abuse identified
Importance:
Links deliberation secrecy with procedural good faith.
6. SFSC Decision 4A_32/2013
Deliberation Secrecy Is Not a Jurisdictional Issue
Principle:
Claims attacking the deliberation process do not amount to excess or lack of jurisdiction.
Holding:
Tribunal did not act ultra vires by keeping deliberations confidential
Deliberation secrecy is inherent in arbitral mandate
7. SFSC Decision 4A_118/2014
No Use of Arbitrator Testimony on Deliberations
Principle:
Arbitrators cannot be compelled to testify on their internal deliberations.
Holding:
Requests to examine arbitrators as witnesses rejected
Protects institutional integrity of arbitration
V. Interaction With Annulment Proceedings
Under Art. 190(2) PILA, parties may challenge an award for:
Jurisdictional defects
Procedural violations
Public policy breaches
However:
Courts do not examine deliberation content
Courts do not infer bias from deliberation dynamics
Courts do not assess reasoning evolution
Only objective and external defects (e.g., absence of any deliberation, denial of a vote) could theoretically be relevant—but never the substance of deliberations.
VI. Dissenting Opinions and Secrecy
Swiss law permits dissenting opinions only if:
Institutional rules allow it, or
Parties agree
Even then:
Dissents may not disclose confidential deliberation exchanges
They may express disagreement with reasoning or outcome only
VII. Practical Consequences in Swiss Arbitration
Parties cannot seek disclosure of draft awards
Arbitrators cannot be questioned about deliberations
Internal emails or notes are immune from production
Challenges based on “how the tribunal decided” are inadmissible
Deliberation secrecy strengthens finality and enforceability
VIII. Key Takeaways
Tribunal deliberation secrecy is a core principle of Swiss arbitration.
It derives from independence, good faith, and procedural autonomy.
Courts strictly refuse to pierce deliberative confidentiality.
Only the final award—not the decision-making process—is reviewable.
Dissent does not weaken secrecy.
Switzerland offers one of the strongest protections for deliberative integrity.
IX. Summary Table
| Issue | Swiss Position |
|---|---|
| Legal status | Fundamental principle |
| Scope | Absolute for internal discussions |
| Draft awards | Confidential |
| Arbitrator testimony | Prohibited |
| Dissenting opinions | Limited, non-intrusive |
| Judicial review | Result only, not process |
| Annulment risk | None based on deliberations |
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