Arbitrators May Decide Jurisdictional Objections That Are Already Pending Before A Foreign Court

Article 186 of the Swiss Private International Law Act (the PIL Act) reads as follows:

1. The Arbitral Tribunal shall itself decide on its jurisdiction.

1bis. It shall decide on its jurisdiction notwithstanding an action on the same matter between the same parties already pending before a State Court or another Arbitral Tribunal, unless there are serious reasons to stay the proceedings.

2. A plea of lack of jurisdiction must be raised prior to any defence on the merits.

3. The Arbitral Tribunal shall, as a rule, decide on its jurisdiction by preliminary award.

Paragraph 1bis was added effective March 1, 2007. Its rationale is to clear up any uncertainty arising out of the Swiss Supreme Court’s decision in the Fomento case (ATF 127 III 279: http://relevancy.bger.ch/cgi-bin/JumpCGI?id=BGE-127-III-279&lang=fr&zoom=OUT).