Multi-Tiered Dispute Resolution Clauses

1. What are the current challenges to enforcement of multi-tiered dispute resolution clauses?

In Switzerland, there is still to date very little published jurisprudence on the matter of multi-tiered dispute resolution clauses (MDR-clauses). Typically a matter of commercial litigation, the first cantonal judgments in Switzerland stem from the late 90'ies and early years of the new millennium. Only recently has the highest court of the country, the Federal Tribunal, dealt with certain aspects of MDR-clauses. However, the Federal Tribunal has to date not been required to make a pronouncement on the actual sanction of the non-compliance with MDR-clauses.

Since the first cantonal decisions there has been a remarkable shift from the earlier court stance that MDR-clauses constitute little more than substantive provisions that require parties to negotiate (but without procedural sanction if not adhered to) to a more progressive approach that clear and binding