Judgment of 21 November 2003

DFT 130 III 66 (2003)

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Judgment of 21 November 2003

Switzerland Federal Tribunal
DFT 130 III 66 (2003)

Facts

The respondent (defendant) and the appellant (plaintiff) entered an exclusive distributorship agreement containing an arbitration clause. The arbitration clause stated that the parties agreed that any dispute that could not be resolved amicably would be settled under “the Rules of Conciliation and Arbitration of the Zurich Chamber of Commerce (ZCC), Zurich/Switzerland, in accordance with the UNCITRAL Arbitration Rules.” The arbitration clause also stated that the tribunal would have three arbitrators appointed by the International Chamber of Commerce (ICC). In August 2002, the respondent referred a dispute to arbitration at the ZCC, and the ZCC appointed a president of the arbitral tribunal who in turn appointed four additional arbitrators. In November 2002, the arbitral tribunal sent the respondent and the appellant an order of constitution. In its response, the appellant asked for additional time to respond for its reply while asserting its request for additional time did not imply its recognition of the jurisdiction of the arbitral tribunal. In January 2003, the appellant filed a motion seeking to limit the arbitral tribunal to the question of jurisdiction. The appellant argued the arbitral tribunal lacked jurisdiction. The arbitral tribunal ruled it had valid jurisdiction, and the appellant appealed to the Swiss Federal Tribunal. The appellant argued on appeal that the arbitral tribunal lacked jurisdiction due to a lack of a valid arbitration agreement. The appellant further argued the arbitration clause was invalid because it referred to three different rules of arbitration and, therefore, contained contradictory rules that could not be reconciled. The appellant asserted that, due to these contradictory rules, the parties could not consent to the arbitration agreement and that the arbitration agreement was therefore invalid.

Rule of Law

Issue

Holding and Reasoning (Per curiam)

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