The Contents of the ASA Bulletin, Volume 43, Issue 3 (2025)

In his message, The Lame Duck’s Last Quack, outgoing ASA President Felix DASSER reflects on a rewarding six-year tenure leading the ASA, and expresses optimism for the association’s future despite emerging challenges affecting Switzerland’s arbitration landscape such as foreign attacks on arbitration by the European Court of Justice, Swiss sanctions and current U.S. attacks on the Swiss export industry.

Articles

Werner JAHNEL and Stefanie PFISTERER present the Supplemental Swiss Rules for Trust, Estate and Foundation (TEF) Disputes which entered into force on 1 July 2025, Switzerland further consolidates its position as a leading jurisdiction for the arbitration of private-wealth disputes. These new rules which supplement the Swiss Rules of Internal Arbitration offer a suitable framework tailored to the needs of high-net-worth families as well as trusts and foundations. By addressing the procedural and substantive complexities inherent in international trust, estate, and foundation matters, the TEF Rules are a welcomed development to increase the use of arbitration in this field. (Werner JAHNEL, Stefanie PFISTERER, Arbitration for Private-Wealth Disputes – The New Paradigm under the Swiss Rules.)

Users of international arbitration experience document production as a burdensome, costly, and all too often ineffective exercise. Drawing on an analysis of various legal traditions and existing instruments, a working group of the ASA User Council has taken the initiative to call for a robust readjustment of current procedures and has put together a whitepaper offering guidance on the key standards defining current practice – relevance and materiality – and the proposed measures aiming at keeping arbitration efficient and attractive that can be applied by parties, counsel, arbitral tribunals, and institutions. (ASA User Council, “Taming the Beast” – A Whitepaper on Document Production.)

Matthias LEEMANN, Judicial Law Clerk and Scientific Advisor at the Swiss Federal Supreme Court, addresses the role of the Swiss Federal Supreme Court in shaping the framework of international arbitration in Switzerland, its limited – yet decisive – powers of review and its restrictive approach to substantive public policy, which contribute to reinforcing Switzerland’s standing as one of the leading seats of arbitration. This article provides insights into the Court’s inner workings and how it typically handles selected procedural matters, such as the language of the proceedings, advance on court fees, suspensive effect or interim measures, standing, nova and the requirement  that setting aside applications be sufficiently substantiated, offering invaluable guidance to practitioners on setting aside proceedings in Switzerland. (Matthias LEEMANN, Insights from the Swiss Federal Supreme Court.)

Swiss Case Law

• 4A_288/2023, Arrêt du 11 juin 2024 [Arbitrators’ duty of independence and impartiality ends with issuance of award – Revision denied – IBA Guidelines]
• 4A_572/2023, Arrêt du 11 juin 2024 [Arbitrators’ duty of independence and impartiality ends with issuance of award – Revision denied – IBA Guidelines]
• Cantonal Court of Schwyz, Decision BEK 2024 90 of 22 October 2024 [Public policy – Punitive damages – Global claims]
• 4A_638/2024, Arrêt du 27 mars 2025 [Public policy – Finding a contractual clause valid under applicable FIFA regulations, but null under Swiss employment law is not a violation of public policy (pacta sunt servanda)]
• 4A_136/2024, Arrêt du 5 septembre 2024 [CAS arbitration – Jurisdictional defense rejected (forced arbitration) – Athlete had subsequently acknowledged CAS jurisdiction by conduct – Subject-matter arbitrability of doping case]
• 4A_616/2024, Urteil vom 24. März 2024 [Domicile of a party – Domestic or international arbitration?]
• 4A_626/2024, Urteil vom 21. März 2025 [Professional liability insurance – Arbitration]
• 4A_269/2024, Arrêt du 30 septembre 2024 [Substantive public policy – Limitation of liability]
• 4A_590/2023, Arrêt du 20 septembre 2024 [Increase of cost advance – Withdrawal of annulment request – Costs against plaintiff]
• 4A_646/2023, Urteil vom 31. Januar 2024  [Enforcement of ICC award in Switzerland – New York Convention]
• 4A_430/2023, Arrêt du 23 février 2024 [Interpretation of arbitration agreement – Carve out of employment disputes – No arbitral jurisdiction]
• 4A_488/2023, Urteil vom 23. Januar 2024 [Right and means of proof – ‘negativa non sunt probanda’ is not part of public policy]