Iura Novit Arbiter

The Swiss Federal Tribunal has recently analyzed the application of the civil law principle "iura novit curia" in Swiss arbitration proceedings:

• The Swiss Federal Tribunal found that arbitral tribunals with seat in Switzerland have the right (and probably also the duty) to correctly apply the substantive law on their own motion. This even applies if no party has submitted a respective legal position in its briefs.
• Swiss arbitrators are thus not seen as (mere) decision-makers with respect to the individual arguments exchanged between the parties.
• For parties and legal counsel, it is not sufficient to rebut the (legal) arguments of the counterparty in the arbitration proceedings. Rather, parties are expected to anticipate and address as subsidiary positions further reasonable applications of the law by the arbitral tribunal.

Please see the case reference and our published comments here.