IBA ARBITRATION COMMITTEE

Subcommittee on Recognition and Enforcement of Arbitral Awards

COUNTRY REPORT ON LOCAL REQUIREMENTS FOR THE EXTENSION OF AN ARBITRATION CLAUSE TO, AND ENFORCEMENT OF AN ARBITRAL AWARD AGAINST, A NON-SIGNATORY

December 2020

In completing this survey, we ask the respondents to consider the question of non-signatories in a broad manner. That is, please consider situations where (i) a party applies to a to compel arbitration against a non- signatory, (ii) the arbitral extended the arbitration clause to a non-signatory, and the non-signatory, or another party to the arbitration, seeks to resist enforcement, or to set aside the award, on the basis that the arbitration clause should not have been extended to the non-signatory, and (iii) where the award creditor attempts to enforce the award against a non-signatory that was not a party to the arbitral proceedings and the award.

SWITZERLAND

Anna Kosmenko Schellenberg Wittmer, Zurich [email protected]

(Yes/ Comments, if any. I. General No /NA)

Must international arbitration agreements be in writing under the of the Yes Pursuant to Art. 178(1) of country for which you are reporting? the Private Act (PILA) as well as Art. 358 of the Swiss Code (Swiss I.1 CPC), the arbitration agreement “must be made in writing or any other means of communication which permits it to be evidenced by a text.”

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Please describe the basic requirements for a valid international arbitration Under Swiss law, an agreement in the country for which you are reporting and cite the relevant arbitration agreement is legislative, regulatory, or jurisprudential basis for these requirements. valid when the following requirements are met: [Please provide your response in the comments column and limit it to one paragraph.] (i) the parties have legal capacity, the capacity to be a party as well as the capacity to act and to conduct arbitral proceedings (arbitrability ratione personae),

(ii) the dispute or legal relationship referred to in the arbitration agreement is capable of settlement by arbitration (arbitrability I.2 ratione materiae),

(iii) the parties have reached consent on the essentialia negotii of the arbitration agreement (intention to submit disputes to arbitration and specification of the disputes or legal relationship subject to arbitration [whether the parties also need to designate at least a method to constitute the arbitral tribunal is disputed]), and

(iv) the form requirements are met1 (see Section I.1).

In the country for which you are reporting, do /arbitral Yes The Swiss Supreme Court generally decide the issue of the scope rationae personae of the arbitration in BGE 129 III 727 E. 5.3 clause (or, in other words, the issue of who are the parties to the arbitration has held that the personal agreement, including the issue of extending the arbitration agreement to a scope of an arbitration non-signatory) on the basis of a specific applicable law or on the sole basis of a agreement is an issue I.3 factual analysis of the case without reference to an applicable law? pertaining to the substance and thus has to be determined in accordance with the law governing the arbitration agreement in terms of Art. 178(2) PILA.2

1 BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2015, p. 115, para. 343. 2 BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2015, pp. 185-186, para. 539; LANDBRECHT/WEHOWSKY, Determining the Law Applicable to the Personal Scope of Arbitration Agreements and its 'Extension', ASA Bulletin 4/2017, p. 848.

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If courts/arbitral tribunals generally decide the issue on the basis of a specific Art. 178(2) PILA lays down applicable law, what law do they apply to decide the issue? an in favorem validitatis conflict of cascade [For example, the applicable law could be: designating three alternative connecting factors: "an • The law of the seat of arbitration. arbitration agreement is • The governing law of the . valid if it conforms either to • The law of the place where the award might ultimately be sought to be the law chosen by the enforced. parties, or to the law • Transnational norms/international law. governing the subject matter of the dispute, in I.3a • The law reached at through a analysis.] particular the main contract, or to Swiss law." [Please provide your response in the comments column, provide any citation to relevant or , and limit your response to one paragraph.] Thus, the ratione personae scope of an arbitration agreement is determined by these three laws. It is sufficient if one of the applicable laws confirms the validity of the

arbitration agreement.3

Does the legislation of your contain any directive in this respect? Yes Swiss arbitration law addresses the substantive [Please provide your response in the comments column and limit it to one validity of the arbitration paragraph.] agreement (which according to the Swiss I.3b Supreme Court includes the question of its personal scope, see Section I.3) in the conflicts of law rule of Art. 178(2) PILA.4

Is the question of whether parties agree to arbitrate ultimately decided by Yes This question is usually arbitrators as opposed to courts in the country for which you are reporting? decided by the arbitrators Please cite the relevant legislative, regulatory, or jurisprudential basis for due to the application of the your answer. Kompetenz-Kompetenz I.4 doctrine under Art. 186(1) [Please provide your response in the comments column and limit it to one PILA, which provides that paragraph.] "the arbitral tribunal shall itself decide on its jurisdiction".

3 See e.g. MEIER in ARROYO (ed), Arbitration in Switzerland: The Practitioner's Guide, 2nd edition, 2018, p. 2506, para. 6. See also BGE 129 III 727 E 5.3.2. 4 MÜLLER/RISKE in ARROYO (ed), Arbitration in Switzerland: The Practitioner's Guide, 2nd edition, 2018, p. 73, para. 11.

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Is there anything in the legislation of the country for which you are reporting No that (i) could preclude the extension of an arbitration clause to non- signatories, or (ii) could permit the extension of an arbitration clause to non- signatories? I.5 [Note that the answer to this question is designed to provide the reader with a quick yes or no answer, plus to flag the key legal criteria. The series of questions in Section II provide the reader with a more detailed discussion of relevant legal theories, jurisprudence, and examples.]

If your answer to question I.5 is yes, please cite and describe the applicable rules contained in any relevant legislation or . I.5a [Please provide your response in the comments column and limit it to one paragraph.]

Is there anything in the jurisprudence of the country for which you are Yes The Swiss Supreme Court reporting that (i) could preclude the extension of an arbitration clause to non- has long held that while an signatories, or (ii) could permit the extension of an arbitration clause to non- arbitration clause is in signatories? principle only binding on the contracting parties, [Note that the answer to this question is designed to provide the reader with a there are certain situations I.6 quick yes or no answer, plus to flag the key legal criteria. The series of where non-signatories can questions in Section II provide the reader with a more detailed discussion of be bound by an arbitration the relevant legal theories, jurisprudence, and examples.] clause, for instance, in cases of assignment of a claim, the assumption of debt, or the transfer of a contract. See BGE 129 III 727 E. 5.3.

If your answer to question I.6 is yes, please cite and describe the applicable tests or There are no general rules applied by the courts of the country for which you are reporting. applicable tests or rules on the extension of an [Please provide your response in the comments column and limit it to one arbitration clause to a non- paragraph.] signatory. Rather, specific and legal doctrine I.6a have developed over time different situations where the question of extending the arbitration clause to non-signatories has arisen. See Section II for details on such situations.

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(Yes/ Additional comments, if II. Specific Legal Theories Concerning Non-Signatories No any. /NA)

Can the assignment or assumption of a contract containing an international Yes The Swiss case law and arbitration agreement commit the non-signatory assignee to international legal scholars in arbitration in the country for which you are reporting? Or is the legislation Switzerland unanimously and jurisprudence in the country for which you are reporting silent on the agree that an assignee of a issue? claim is bound by, and in turn may also rely on, an arbitration agreement that covers the assigned claim.5

In particular, it is observed that "[t]he arbitration agreement is […] transferred – as an II.1 accessory clause of a procedural nature – to the assignee, subject to an agreement to the contrary. The same is true in the case of an assumption of debt, where a new debtor, by means of a contract with the creditor, agrees to assume […] a pre-existing debt arising of a contract containing and arbitration clause."6

5 BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2015, pp. 187-193, paras. 543-557. 6 BÄRTSCH/PETTI in GEISINGER/VOSER (ed), International Arbitration in Switzerland, 2013, p. 33, para. 3.02 [B][1][d].

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If your answer to question II.1 is yes, please: If an assignment is subject to Swiss law, Arts. 164-174 • Cite and describe the applicable rules contained in any relevant legislation of the Code of Obligations or regulations. ("CO") apply. Pursuant to • Provide examples from your country’s jurisprudence highlighting which Art. 170(1) CO, the parties are ultimately bound, and the circumstances under which they are assignment of a claim likely to be bound. includes all "preferential and accessory rights". The [Please provide your response in the comments column and limit it to one Swiss Supreme Court has paragraph.] held that this includes an applicable arbitration agreement. See BGE 103 II II.1a 75.7

As regards an assumption of debt, practical considerations and a desire to ensure that the assumed claim is actionable, speak in favor of extending an arbitration agreement covering the corresponding claim to the new debtor. See BGer. 4A_627/2011 of 8 March 2012.8

7 BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2015, pp. 188-189, para. 547. 8 BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2015, p. 192, para. 556.

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If your answer to question II.1 is no, please:

• Cite and describe the applicable rules contained in any relevant legislation or regulations. II.1b • Provide examples from your country’s jurisprudence highlighting which parties are ultimately bound, and the circumstances under which they are likely to be bound.

Can incorporation by reference (i.e., where a contract incorporates an Silent As a rule, a person who arbitration clause contained in a separate document) commit a non-signatory signs a contract that party to international arbitration in the country for which you are reporting? incorporates general Or is the legislation and jurisprudence in the country for which you are conditions by reference is reporting silent on the issue? bound in the same way as a person who directly signs the general conditions.9

There is one test widely applied by the Swiss Supreme Court: rule of unusualness ("regle de l'insolite"), under which a party cannot be expected to have agreed to the content of such clause as "unusual i.e., if its content deviates from what a reasonable II.2 party could expect"10 See also, BGE 108 II 416 E. 1 and BGE 109 II 213, E.2. Yet, this only applies in involving consumers (i.e. in the b2c field).

So, generally speaking a party may due to an incorporation by reference be able or required to participate in the arbitration. However, there are no published cases where incorporation by reference covered a non- signatory.

9 BÄRTSCH/PETTI in GEISINGER/VOSER (ed), International Arbitration in Switzerland, 2013, p. 32, para. 3.02 [B][1][c]. 10 BÄRTSCH/PETTI in GEISINGER/VOSER (ed), International Arbitration in Switzerland, 2013, p. 32, para. 3.02 [B][1][c].

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If your answer to question II.2 is yes, please:

• Cite and describe the applicable rules contained in any relevant legislation or regulations. • Provide examples from your country’s jurisprudence highlighting which II.2a parties are ultimately bound, and the circumstances under which they are likely to be bound.

[Please provide your response in the comments column and limit it to one paragraph.]

If your answer to question II.2 is no, please:

• Cite and describe the applicable rules contained in any relevant legislation or regulations. • Provide examples from your country’s jurisprudence highlighting which II.2b parties are ultimately bound, and the circumstances under which they are likely to be bound.

[Please provide your response in the comments column and limit it to one paragraph.]

Can an arbitration clause commit a non-signatory third-party beneficiary of a Yes According to recent Swiss contract to international arbitration in the country in which you are case law ,in certain reporting? Or is the legislation and jurisprudence in the country for which situations, a third-party you are reporting silent on the issue? beneficiary may rely on the II.3 arbitration agreement contained in the standalone contract. Please see Section II.3.a below for details.

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If your answer to question II.3 is yes, please: Within the meaning of Art. 112 (2) of the Code of • Cite and describe the applicable rules contained in any relevant legislation Obligations (CO), there is a or regulations. notion of a 'genuine • Provide examples from your country’s jurisprudence highlighting which contract in favor of a third parties are ultimately bound, and the circumstances under which they are party' if the contracting likely to be bound. parties intended for the beneficiary to enjoy an [Please provide your response in the comments column and limit it to one independent right of its own paragraph.] to compel performance of the contract.11 See BGer. 4A_627/2011 E. 3.5 of 8 March 2012 and BGer. 4A_44/2011 E. 2.4 of 19 April 2011.12

The Swiss Supreme Court has held that when a 'genuine contract in favor of II.3a a third party' contains an arbitration clause, the beneficiary may rely on it unless the arbitration clause expressly excludes this. See BGer. 4A_44/2011 E. 2.4 of 19 April 2011.

However, this approach has been questioned by some scholars, who found that it was oversimplified and that the correct test should be the following: whether the contracting parties (promisor and promisee) had the common intention to entitle the third party (beneficiary) to invoke the arbitration clause.13

If your answer to question II.3 is no, please:

• Cite and describe the applicable rules contained in any relevant legislation or regulations. • Provide examples from your country’s jurisprudence highlighting which II.3b parties are ultimately bound, and the circumstances under which they are likely to be bound.

[Please provide your response in the comments column and limit it to one paragraph.]

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Can a theory of agency (i.e., where an agreement containing an arbitration Yes The theory of agency is a clause has been entered into by a person who expressly or impliedly did so as common legal concept a representative of a non-signatory) commit a non-signatory party to applied in Swiss non‐ international arbitration in the country for which you are reporting? Or is signatory cases. Since the legislation and jurisprudence in the country for which you are reporting agency relationships in non‐ silent on the issue? signatory cases are often II.4 not explicit, the Swiss jurisprudence even goes a bit further and deals with the situations of undisclosed or apparent authority.14

If your answer to question II.4 is yes, please: A non-signatory party may be bound by the arbitral • Cite and describe the applicable rules contained in any relevant legislation agreement, as a result of its or regulations. conduct which creates the • Provide examples from your country’s jurisprudence highlighting which appearance of intention to parties are ultimately bound, and the circumstances under which they are be bound by the main likely to be bound. contract ("Rechtsschein").15

For example, in BGer. II.4a [Please provide your response in the comments column and limit it to one paragraph.] 4P.73/1993 of 1 September 1993, the Swiss Supreme Court upheld the decision by the arbitral tribunal against a signatory agent based on the fact that the agent and the principal held themselves out as one indistinguishable entity.16

11 BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2015, pp. 193-194, para. 558. 12 BÄRTSCH/PETTI in GEISINGER/VOSER (ed), p. 34, para 3.02 [B][1][d], fn. 36. 13 BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2015, pp. 193-194, paras. 558-559. 14 ZUBERBUEHLER, Non-Signatories and the Consensus to Arbitrate, ASA Bulletin 1/2008, pp. 18-34. 15 BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2015, p. 198, para. 567. 16 ZUBERBUEHLER, Non-Signatories and the Consensus to Arbitrate, ASA Bulletin 1/2008, pp. 18-34.

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If your answer to question II.4 is no, please:

• Cite and describe the applicable rules contained in any relevant legislation or regulations. • Provide examples from your country’s jurisprudence highlighting which II.4b parties are ultimately bound, and the circumstances under which they are likely to be bound.

[Please provide your response in the comments column and limit it to one paragraph.]

Can a theory of estoppel, good faith, or abuse of right (i.e., where a party Yes Good faith can be used to benefitting from, and acting in accordance with, a contract containing an prove that a non-signatory arbitration clause is estopped from claiming that it is not bound by certain can be covered by the provisions of the contract) commit a non-signatory party to international arbitration agreement. arbitration in the country for which you are reporting? Or is the legislation and jurisprudence in the country for which you are reporting silent on the However, the good faith issue? doctrine itself is not sufficient to bind a non- signatory party to arbitration but an analysis of the good faith doctrine could support the II.5 conclusion that a non- signatory had the intent to be bound by the clause.

Estoppel as a doctrine is not applicable under Swiss law but finds its functional equivalent in the principle of good faith.

Abuse of right theory is covered in detail in Section II.7.

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If your answer to question II.5 is yes, please: The Swiss Supreme Court, in BGer. 4A_376/2008 of 5 • Cite and describe the applicable rules contained in any relevant legislation December 2008, decided or regulations. the following: Swiss case • Provide examples from your country’s jurisprudence highlighting which law recognized the parties are ultimately bound, and the circumstances under which they are possibility to extend the likely to be bound. arbitration clause to persons who did not sign it. It has [Please provide your response in the comments column and limit it to one already been admitted that paragraph.] in specific circumstances, a certain behavior may substitute compliance with a formal requirement on the basis of the rules of good faith. For instance, when a third party becomes involved in the performance II.5a of the contract which contains the arbitration clause in such a way that an intent to submit to the arbitration agreement, expressed by its behavior, may be deducted from its behavior. See also BGE 134 III 565 E. 3.2.

Also, as it was described in Section III.2, the good faith doctrine could be taken into account while analyzing the conduct of the party. See BGer. 4A_450/2013 E. 3.5 of 7 April 2014.

If your answer to question II.5 is no, please:

• Cite and describe the applicable rules contained in any relevant legislation or regulations. • Provide examples from your country’s jurisprudence highlighting which II.5b parties are ultimately bound, and the circumstances under which they are likely to be bound.

[Please provide your response in the comments column and limit it to one paragraph.]

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Can “implied consent” (i.e., where a party’s active participation in the Yes Swiss scholars opine that negotiation, execution, performance and/or termination of a contract implied consent can be containing an arbitration clause provides for its intent to consent to deduced in situations arbitration) commit a non-signatory party to international arbitration in the "where it must be assumed country for which you are reporting? Or is the legislation and jurisprudence (reasonably) that the “non- II.6 in the country for which you are reporting silent on the issue? signatory” impliedly consented, by its (heavy) involvement in the performance of the underlying contract, to the arbitration agreement."17

17 LANDBRECHT/WEHOWSKY, Determining the Law Applicable to the Personal Scope of Arbitration Agreements and its 'Extension', ASA Bulletin 4/2017, p. 847.

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If your answer to question II.6 is yes, please: The Swiss Supreme Court held that a “non-signatory” • Cite and describe the applicable rules contained in any relevant legislation might be bound in or regulations. situations where it must be • Provide examples from your country’s jurisprudence highlighting which assumed (reasonably) that parties are ultimately bound, and the circumstances under which they are the “non-signatory” likely to be bound. impliedly consented, by its (heavy) involvement in the [Please provide your response in the comments column and limit it to one performance of the paragraph.] underlying contract, to the arbitration agreement.

In BGer. 4A_376/2008 E. 8.6 of 5 December 2008, the Swiss Supreme Court found that (intense/heavy) participation in the preparation or performance of a contract can lead to an extension of an arbitration II.6a agreement to non- signatories.

A similar finding can be seen in BGer. 4A_450/2013 E. 3.5.5.1.1 of 7 April 2014. The Swiss Supreme Court found that a party that is not a signatory to the arbitration clause will nonetheless fall within its scope and be bound by the arbitration clause if it performs the work contract in a manner that the other party can legitimately consider in good faith as an acceptance of the contractual obligations of the main contract, including the arbitration clause.18

If your answer to question II.6 is no, please:

• Cite and describe the applicable rules contained in any relevant legislation or regulations. • Provide examples from your country’s jurisprudence highlighting which II.6b parties are ultimately bound, and the circumstances under which they are likely to be bound.

[Please provide your response in the comments column and limit it to one paragraph.]

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Can piercing the corporate veil or the alter ego doctrine (i.e., where, typically Yes Swiss scholar opine that due to misuse or abuse of rights or fraud, the separate legal form of a non- "[t]he corporate veil may signatory that uses its dominating authority over a signatory is disregarded so be pierced under Swiss law, that both are treated as a single entity) commit a non-signatory party to but only where the reliance II.7 international arbitration in the country for which you are reporting? Or is on the independence of a the legislation and jurisprudence in the country for which you are reporting separate legal entity or silent on the issue? person would constitute an abuse of right […]." 19

If your answer to question II.7 is yes, please: An example of 'abuse of right' can be a situation, • Cite and describe the applicable rules contained in any relevant legislation when a company is or regulations. established for the sole • Provide examples from your country’s jurisprudence highlighting which purpose of frustrating the parties are ultimately bound, and the circumstances under which they are justified claims of the third likely to be bound. parties or in order to avoid contractual or statutory [Please provide your response in the comments column and limit it to one obligations. See BGE 113 II II.7a paragraph.] 31 E.2c and BGE 108 II 213 E.6.20

However, "[w]hen the corporate veil is pierced, the arbitration agreement is not extended to the third party", but rather, "the third party replaces the original signatory of the contract."21

If your answer to question II.7 is no, please:

• Cite and describe the applicable rules contained in any relevant legislation or regulations. • Provide examples from your country’s jurisprudence highlighting which II.7b parties are ultimately bound, and the circumstances under which they are likely to be bound.

[Please provide your response in the comments column and limit it to one paragraph.]

In the country for which you are reporting, are there any other legal theories No II.8 that can be used to commit a non-signatory to international arbitration?

18 Swiss International Arbitration Decisions website, Introductory note to BGer. 4A_450/2013 of 7 April 2014, available at: http://www.swissarbitrationdecisions.com/extension-arbitral-clause-good-faith-grounds (accessed on 30 November 2020). 19 BÄRTSCH/PETTI in GEISINGER/VOSER (ed), International Arbitration in Switzerland, 2013, p. 35, para 3.02 [B][1][d]. 20 BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2015, p. 199, para. 571. 21 BÄRTSCH/PETTI in GEISINGER/VOSER (ed), International Arbitration in Switzerland, 2013, page 35, para 3.02 [B][1][d]; See also, BERGER/KELLERHALS, International and Domestic Arbitration in Switzerland, 2015, pp. 199-200, paras. 571-572.

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If your answer to question II.8 is yes, please:

• Cite and describe the applicable rules contained in any relevant legislation or regulations. • Provide examples from your country’s jurisprudence highlighting which II.8a parties are ultimately bound, and the circumstances under which they are likely to be bound.

[Please provide your response in the comments column and limit it to one paragraph.]

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(Yes/ Additional comments, if III. Enforcement of an Arbitral Award against a Non-Signatory No any. /NA)

Have there been court cases in the country for which you are reporting where No There are no known cases a party has objected to the enforcement of an award, on the basis that the in which a party has arbitral tribunal extended the arbitration clause to one or more non- objected to the enforcement signatories? of an award on these grounds. III.1 Please refer to Section IV.2 for the case law, which may assist parties who are intending to object to the enforcement.

If your answer to III.1 is yes, please explain which provision(s) of the New York Convention, or any other bilateral or multilateral convention on the enforcement of arbitral awards, was (were) relied upon as the basis for the application/objection. III.1a [Please provide your response in the comments column and limit it to one paragraph.]

If your answer to III.1 is yes, please explain whether set-aside/enforcement was finally granted or refused, and the court’s reasons for reaching this result. III.1b [Please provide your response in the comments column and limit it to one paragraph.]

Have there been court cases in the country for which you are reporting in No There are no known cases which the enforcement of an award was requested against a non-signatory in which a party has third party (a company/individual/state that was a non-signatory to the requested the enforcement arbitration agreement and not a party to the arbitral proceedings/award)? of an award against a non- signatory third party. [Please provide your response in the comments column and limit it to one III.2 paragraph.] Please refer to Section IV.2 for the case law, which may assist parties who are intending to enforce the award against the non- signatory.

If the answer to III.2 is yes, please explain on what legal basis the enforcement was requested. III.2a [Please provide your response in the comments column and limit it to one paragraph.]

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If the answer to III.2 is yes, please explain whether the enforcement was finally granted/refused and the court’s reasons for reaching this result. III.2b [Please provide your response in the comments column and limit it to one paragraph.]

(Yes/ Additional comments, if IV. Miscellanea No any. /NA)

Is there anything else that a party considering the issue of the extension of an Yes Some scholars support the arbitration clause to a non-signatory should take into account with respect to Group of Companies the country for which you are reporting? doctrine (GoC) a basis for the extension of an [Please provide your response in the comments column and limit it to one arbitration clause, while paragraph.] others criticize and reject it entirely. However, the Swiss Supreme Court has so far neither expressly IV.1 rejected the concept nor endorsed it. It is also essential not to commingle the GoC doctrine and the case law on "implied consent" based on (heavy/intense) involvement in the performance of the contract.22

22 LANDBRECHT/WEHOWSKY, Determining the Law Applicable to the Personal Scope of Arbitration Agreements and its 'Extension', ASA Bulletin 4/2017, pp. 846-847.

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Is there anything else that a party considering trying to enforce a foreign No The case law, which may arbitral award against a non-signatory should take into account with respect assist the parties who are to the country for which you are reporting? intending to object to the enforcement: [Please provide your response in the comments column and limit it to one paragraph.] - In BGer. 4A_636/2018 of 24 September 2019, the Swiss Supreme Court rejected a set aside application aimed at annulling a partial award that had declared that a state was not bound by an arbitration clause signed by a state-owned entity.

The case law, which may assist the parties who are intending to enforce the award against the non- signatory:

- In BGer. 4A_646/2018 of 17 April 2019, the Swiss Supreme Court upheld a state-court , in IV.2 which the court had extended an arbitration clause to a non-signatory and referred the dispute to arbitration by virtue of Article II(3) of the New York Convention. It also analyzed the formal requirements of Article II(2) of the New York Convention.

- In BGer. 4A_450/2013 of 7 April 2014, the Swiss Supreme Court partially upheld an application to set aside an award issued by an ICC tribunal on the grounds that it incorrectly declined jurisdiction over one of the parties based on the reliance and good faith principles.

- In BGE 129 III 727, the Swiss Supreme Court found that generally, an arbitration agreement in a contract is only binding on the

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contracting parties. However, under certain conditions, it is well established that an arbitration agreement can also bind parties who have not signed the contract, for instance, in cases of assignment of a claim, the assumption of debt, or the transfer of a contract.

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