2025 Year in Review: Switzerland

As part of the 2025 Year in Review series, this post highlights the most significant arbitration-related decisions of the Swiss Federal Supreme Court (“SFSC”) in 2025 and further developments related to arbitration in Switzerland.

Constitution of Tribunal

a) In the Context of forum necessitatis, juge d’appui, and State Immunity

In decision 4A_163/2023/4A_490/2023 = 151 III 297 (16.01.2025), the SFSC ruled that the appointment of an arbitrator by a Swiss juge d'appui in a foreign-seated arbitration based on emergency jurisdiction (forum necessitatis) under Article 3 of the Federal Act on Private International Law ("PILA") can be challenged directly by appealing to the SFSC. The SFSC clarified that this is an exception to the rule that generally no legal remedy is available against the decision of juge d'appui. In the underlying dispute, a Swiss company, Y, initiated arbitration proceedings against a foreign company, X, at a foreign arbitration seat in 2019. X requested that the claim be dismissed and called on the state of N ("State") as an additional party against which it brought claims. In 2021, relying on Art. 3 PILA, X requested that the Geneva court of first instance appoint arbitrators in the arbitration against Y and the State. Before the Geneva court, the State requested that the proceedings be limited to examining the State's sovereign immunity from the jurisdiction of foreign state courts. The court rejected the State's request, and the State appealed against this decision.

The SFSC held that, in principle, the immunity of states from jurisdiction is governed by customary international law and Article 17 of the UN Convention on Jurisdictional Immunities of States and Their Property (“UNJIP”) ( has not yet entered into force) which prevents a state from invoking its immunity from the jurisdiction of state courts only if the state had entered into an arbitration agreement. The SFSC affirmed the State's immunity as it had not signed the arbitration clause agreed by Y and X. It concluded that the Geneva court should have limited the proceedings to the question of the State's immunity and instructed the Geneva court to appoint arbitrators without the State’s involvement.

b) By Means of MFN Clause and BIT Appointment Mechanism

Decision 4A_78/2024 (03.06.2025) concerned the constitution of the tribunal in a dispute initiated by 19 heirs of former shareholders of the Libyan company T, which was nationalised in 1970. In November 2018, the heirs initiated arbitration proceedings against Libya in accordance with Article 17.2 of the OIC Investment Agreement to claim compensation for the expropriation. As the Secretary-General of the OIC did not respond to the heirs' request to appoint the chair of the tribunal, they appealed to the Secretary-General of the Permanent Court of Arbitration ("PCA") to designate an appointing authority. They argued that the most-favoured-nation ("MFN") clause in Article 8 of the OIC Investment Agreement allowed them to invoke the France-Libya Bilateral Investment Treaty ("BIT"). On 16 July 2019, the PCA Secretary-General appointed A as the appointing authority in accordance with the UNCITRAL Rules, and A appointed B as chair. The so-constituted tribunal dismissed Libya's objection to the jurisdiction of the tribunal and ordered Libya to pay approximately USD 73 million. Libya appealed against the award to the SFSC.

The SFSC held that the OIC Investment Agreement’s rules on the constitution of the tribunal are incomplete as Article 17.2 does not clarify what should happen if the OIC Secretary-General fails to perform his assigned function. The SFSC ruled that this gap could be closed by relying on the MFN clause and the France-Libya BIT’s appointment mechanism. This was compatible with the OIC Investment Agreement because the interpretation of the MFN clause in Article 8 (which in the authentic Arabic version refers to "all rights and privileges" of the investors) showed that it encompasses not only substantive but also procedural guarantees. The SFSC dismissed Libya’s appeal but clarified that it was not making a general ruling as to whether MFN clauses allow investors to rely on procedural guarantees in other investment treaties.

Tribunal’s Jurisdiction

a) In the Context of Bilateral Investment Treaties

In decision 4A_466/2023 = 151 III 455 (06.02.2025), the SFSC clarified that when deciding whether investors who are nationals of both states that are parties to a BIT can benefit from its provisions, the predominant and actual nationality of the investor must be taken into account. If the investor’s predominant and actual nationality is the same as the state in which the investment was made, the tribunal constituted based on the BIT does not have jurisdiction.

The underlying dispute involved a Venezuelan investor, A, born in 1954, who had obtained Spanish citizenship in 1999. He had lived in the USA since 1989, regularly travelled to Spain, and had not returned to Venezuela since 2018 due to political unrest. The focus of the A's economic activity has always been in Venezuela. In 2020, A initiated arbitration proceedings against Venezuela under the Spain-Venezuela BIT, claiming damages due to various violations of the BIT by Venezuela. Venezuela objected to the tribunal’s jurisdiction (ratione personae), arguing that the BIT does not protect Spanish-Venezuelan dual nationals. The tribunal declined its jurisdiction, and the investor appealed to the SFSC. The SFSC held that the Spain-Venezuela BIT is silent on the matter of dual nationals. The SFSC filled this gap in the BIT by relying on the Vienna Convention on the Law of Treaties, according to which the predominant and actual citizenship determines protection. The SFSC dismissed A’s appeal.

b) In the Context of Procedural Forfeiture

In decision 4A_164/2025 (15.08.2025), the SFSC dismissed an appeal by a Hungarian professional swimmer, A, against a decision by the CAS (which had upheld an anti-doping decision and a four-year ban). Before the SFSC, A argued that the tribunal appointed by the CAS was biased, that it was not properly constituted (Art. 190(2)(a) PILA) and lacked jurisdiction (Art. 190(2)(b) PILA).

The SFSC pointed to Article 182(4) PILA (in force as of 1 January 2021), which explicitly stipulates that a party that continues with the arbitration proceedings without objecting immediately to a breach of the rules of procedure of which it is aware or which it would have been aware had it exercised due diligence may not invoke this breach at a later point in the proceedings. The SFSC found that A had accepted the composition of the tribunal without reservation before the CAS. Consequently, A’s objections were forfeited, and A was barred from raising them before the SFSC.

c) In Relation to Tribunal’s Power of Review

In decision 4A_221/2024 / 4A_223/2024 (17.02.2025), the SFSC addressed the distinction between a tribunal’s jurisdiction and its power of review. The underlying dispute unfolded in two stages. It arose from a contract ("CR1 Contract") between a consortium (consisting of A, B, and C) and the Turkish Ministry of Transport, led to arbitration dealing with issues arising from the CR1 Contract, and ended with the ‘CR1 Award’ granting the Ministry EUR 27 million to be paid jointly and severally by A, B, and C. In a second step, A, B, and C conducted an arbitration ("Consortium Arbitration"), in which the internal allocation of the amounts awarded in the CR1 Award was to be determined, without re-addressing the issues decided in the CR1 Award. The "Consortium Award" ruled that the A had breached the consortium agreement and obliged A to compensate B and C. However, A’s liability was reduced as B and C had contributed to the damage.

A and B appealed against the ‘Consortium Award’, arguing that the tribunal exceeded the limits of its jurisdiction. The SFSC noted that, during the Consortium Arbitration, the jurisdiction of the tribunal had not been contested and the appellants were thus precluded from raising such a complaint before the SFSC. Insofar as the appellants criticised the Consortium Award for exceeding the scope of the tribunal’s power of review, such criticism did not relate to the tribunal’s jurisdiction (Article 190(2)(b) PILA), as this would require that the tribunal had ruled on an issue not covered by the arbitration clause. The SFSC held that the appeals were inadmissible.

Subjective Scope of Arbitration Clause

In decision 4A_460/2024 (10.03.2025), the SFSC reiterated settled case law on the subjective scope (ratione personae) and interpretation of arbitration clauses based on Article 178 PILA (previously discussed here). The underlying dispute arose from a shareholders’ agreement concluded by A and B, both shareholders in the company C (which operated a port terminal in Riga). Under the shareholders' agreement, which C did not sign, A had certain obligations regarding the utilisation of the terminal, and the shareholders' agreement provided for a contractual penalty in the event of non-compliance. The terminal’s operation was suspended in May 2022, and in January 2023, B demanded that A pay C the contractual penalty. In February 2023, A initiated arbitration proceedings against B, requesting a declaration that it did not owe the penalty. In April 2023, C sued for the penalty in a Latvian state court. A subsequently requested that C be included in the arbitration proceedings. The arbitral tribunal denied its jurisdiction with respect to all claims against C, and A appealed this decision.

The SFSC considered C's filing of a lawsuit in a Latvian state court as an indication of its unwillingness to submit to arbitration. It dismissed the appeal and upheld the tribunal's decision, since C was not a party to the shareholders' agreement or the arbitration clause, nor was it bound by either of these through its conduct or for other reasons (such as abuse of rights or corporate control).

Remedy of Revision (Article 190a PILA)

In two decisions, the SFSC addressed China’s requests for revision of the jurisdictional award rendered in a dispute under the China-UK BIT and provided guidance on the admissible evidence. Both requests were dismissed. In decision 4A_46/2024 (= 151 III 471) (17.04.2025), China based its request of 23 January 2024 on a confession made by a witness after the award was rendered. The SFSC clarified that evidence that came into existence after the award was rendered does not provide grounds for a revision. This also applies if such evidence is intended to prove a fact predating the award.

In decision 4A_528/2024 (26.06.2025), China based its request (of 4 October 2024) on a criminal judgment by a Chinese court in which the opposing party was charged with a criminal offence. The SFSC clarified that a party requesting revision must demonstrate a causal link between the criminal offence and the operative part of the award, i.e., the criminal offence must have had an actual, direct or indirect influence on the award to the detriment of the party requesting revision. The SFSC found that China failed to prove the necessary causal link.

Award Notification

In decision 4A_412/2025 (09.12.2025), the SFSC reaffirmed that, under the principle of good faith, a party that had become informally aware of an award concerning it was required to immediately notify the tribunal of any defect affecting the notification of the award, which it could have detected by exercising due diligence. The SFSC held that, by failing to do so, the party in question had forfeited its right to be notified of the award again in due form. The appeal lodged on 2 September 2025 by the party to whom the award had been notified by private courier in May 2017 was time-barred and therefore inadmissible.

Further Developments

In the case of Semenya v. Switzerland (Application no. 10934/21), the Grand Chamber of the European Court of Human Rights ("ECtHR") ruled that Switzerland had violated Article 6(1) of the European Convention on Human Rights ("ECHR"), as the SFSC should have exercised ‘particularly rigorous’ scrutiny of the CAS award. The ECtHR held that the SFSC’s review was limited to the compatibility of the CAS award with substantive public policy under Article 190(2)(e) PILA, which the SFSC interpreted very restrictively, and that the required standard of ‘particularly rigorous’ scrutiny was not met. (The SFSC’s decision concerning Semenya’s appeal to set aside the CAS award was previously discussed here). It remains to be seen whether the SFSC will amend its scrutiny of CAS awards, or its public policy scrutiny in general.

Last but not least, the Swiss Arbitration Centre introduced the Supplemental Swiss Rules for Trust, Estate and Foundation Disputes ("TEF Rules"), designed for disputes relating to trusts, estates (inheritance), and foundations. The TEF Rules have been previously discussed here.