Newsletter-21

Swiss Supreme Court Decided Stay of the Arbitration Pending Compliance with Multi-tiered Clause* Prof. Dr. H. Ercument Erdem Introduction The Swiss Federal Supreme Court (“Court”) with its latest deci- sion dated March 16, 2016, numbered 4A_628/2015 and published on March 29, 2016 (“Decision”) 1 decided to stay the arbitration as a result of a failure to comply with a multi-tiered dispute resolution clause. This Decision is distinctive from other decisions rendered by the Court therefore it is a leading case and should be examined. Background The Claimant and the Respondent executed agreements for explo- ration, production, transport and commercialization of gas products. Dispute Resolution Clause The dispute resolution clause contained in all of the agreements executed between the parties is; “All differences arising between the Parties […] that cannot be resolved by the Parties shall in the first instance be the object of an attempt of conciliation under the ADR (Alternative Disputes Resolution) Rules of the International Chamber of Commerce (ICC). All differences between the Parties […] not resolved by conciliation shall be decided as a last resort by way of arbitration according to the UNCITRAL Arbitration Rules by three (3) * Article of April 2016 1 Decision is rendered in French. See, Swiss Federal Tribunal web site: http://www.bger.ch/fr/index/juridiction/jurisdiction-inherit-template/jurisdiction- recht/jurisdiction-recht-urteile2000neu.htm.