Irreconcilable perspectives like in an Escher's drawing? Extension of an arbitration agreement to a non-signatory state and attribution of state entities' conduct: privity of contract in Swiss and investment arbitral tribunals' case law
Details
State: Public
Version: Final published version
License: Not specified
Serval ID
serval:BIB_6DCC80ABD784
Type
Article: article from journal or magazin.
Collection
Publications
Institution
Title
Irreconcilable perspectives like in an Escher's drawing? Extension of an arbitration agreement to a non-signatory state and attribution of state entities' conduct: privity of contract in Swiss and investment arbitral tribunals' case law
Journal
Arbitration International
ISSN
0957-0411
1875-8398
1875-8398
Publication state
Published
Issued date
13/08/2020
Peer-reviewed
Oui
Language
english
Abstract
A matter of perspective? When a dispute arises and on the government’s side a non-signatory to the arbitration agreement or investment treaty adopted the contested action, privity of contract and rules of attribution of conduct may apply. Both have been interpreted in different manners. When one put all these interpretations together, the result is a picture of impossible spaces and irreconcilable scenarios like in a drawing of Escher. If Escher expressed his artistic inspiration by challenging gravity and visual logic, practitioners may nowadays find challenging solving the dilemma of when and how an arbitration agreement can be extended to a non-signatory state or the conduct of a state entity be attributed to the state.
In its recent decision 4 A_636/2018, the Swiss Supreme Court confirmed its case law that exceptions to the doctrine of privity of contract exist under Swiss law, but these are limited in number and scope. The same applies regardless of whether private or public entities are concerned. This article will examine decision 4 A_636/2018 in light of Swiss case law and draw a comparison with investment arbitral tribunals’ jurisprudence applying rules of attribution of conduct of customary international law when privity of contract lacks on the government’s side.
In its recent decision 4 A_636/2018, the Swiss Supreme Court confirmed its case law that exceptions to the doctrine of privity of contract exist under Swiss law, but these are limited in number and scope. The same applies regardless of whether private or public entities are concerned. This article will examine decision 4 A_636/2018 in light of Swiss case law and draw a comparison with investment arbitral tribunals’ jurisprudence applying rules of attribution of conduct of customary international law when privity of contract lacks on the government’s side.
Create date
18/08/2020 9:36
Last modification date
19/10/2020 7:09