KluwerArbitration

Document information I. Introductory Rules: Notice of Arbitration and Answer to

the Notice of Arbitration (Art. 3)
Publication Philippe Bärtsch; Angelina M. Petti
Swiss Rules of (*)
International Arbitration:
Commentary (Second 1. The party initiating arbitration (hereinafter called the “Claimant” or, where applicable, the
Edition) “Claimants”) shall submit a Notice of Arbitration to the Secretariat at any of the addresses
listed in Appendix A.
Organization 2. Arbitral proceedings shall be deemed to commence on the date on which the Notice of
Swiss Chambers' Arbitration is received by the Secretariat.
Arbitration Institution 3. The Notice of Arbitration shall be submitted in as many copies as there are other parties
(hereinafter called the “Respondent” or, where applicable, the “Respondents”), together
Entry into force with an additional copy for each arbitrator and one copy for the Secretariat, and shall
include the following:
1 June 2012
(a)A demand that the dispute be referred to arbitration;
Promulgation (b)The names, addresses, telephone and fax numbers, and e-mail addresses (if any) of the
1 June 2012 parties and of their representative(s);
(c)A copy of the arbitration clause or the separate arbitration agreement that is invoked;
Bibliographic (d)A reference to the contract or other legal instrument(s) out of, or in relation to, which the
reference dispute arises;
Philippe Bärtsch and (e)The general nature of the claim and an indication of the amount involved, if any;
Angelina M. Petti, 'I. (f)The relief or remedy sought;
Introductory Rules: Notice of
Arbitration and Answer to the (g)A proposal as to the number of arbitrators (i.e. one or three), the language, and the seat
Notice of Arbitration (Art. 3)', of the arbitration, if the parties have not previously agreed thereon;
in Tobias Zuberbühler , (h)The Claimant's designation of one or more arbitrators if the parties' agreement so
Christoph Müller , et al. (eds),
requires;
Swiss Rules of International
Arbitration: Commentary (i)Confirmation of payment by check or transfer to the relevant account listed in Appendix
(Second Edition), A of the Registration Fee as required by Appendix B (Schedule of Costs) in force on the
(Schulthess Juristische date the Notice of Arbitration is submitted.
Medien AG 2013) pp. 38 - 51
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4. The Notice of Arbitration may also include:
(a)The Claimant's proposal for the appointment of a sole arbitrator referred to in Article 7;
(b)The Statement of Claim referred to in Article 18.
5. If the Notice of Arbitration is incomplete, if the required number of copies or attachments
are not submitted, or if the Registration Fee is not paid, the Secretariat may request the
Claimant to remedy the defect within an appropriate period of time. The Secretariat may
also request the Claimant to submit a translation of the Notice of Arbitration within the
same period of time if it is not submitted in English, German, French or Italian. If the
Claimant complies with such directions within the applicable time-limit, the Notice of
Arbitration shall be deemed to have been validly filed on the date when the initial version
was received by the Secretariat.
6. The Secretariat shall provide, without delay, a copy of the Notice of Arbitration together
with any exhibits to the Respondent.
7. Within thirty days from the date of receipt of the Notice of Arbitration, the Respondent
shall submit to the Secretariat an Answer to the Notice of Arbitration. The Answer to the
Notice of Arbitration shall be submitted in as many copies as there are other parties,
together with an additional copy for each arbitrator and one copy for the Secretariat, and
shall, to the extent possible, include the following:
(a)The name, address, telephone and fax numbers, and e-mail address of the Respondent

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 and of its representative(s);
(b)Any plea that an arbitral tribunal constituted under these Rules lacks jurisdiction;
(c)The Respondent's comments on the particulars set forth in the Notice of Arbitration
referred to in Article 3(3)(e);
(d)The Respondent's answer to the relief or remedy sought in the Notice of Arbitration
referred to in Article 3(3)(f);
(e)The Respondent's proposal as to the number of arbitrators (i.e. one or three), the
language, and the seat of the arbitration referred to in Article 3(3)(g);
(f)The Respondent's designation of one or more arbitrators if the parties' agreement so
requires.
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8. The Answer to the Notice of Arbitration may also include:
(a)The Respondent's proposals for the appointment of a sole arbitrator referred to in
Article 7;
(b)The Statement of Defence referred to in Article 19.
9. Articles 3(5) and (6) are applicable to the Answer to the Notice of Arbitration.
10. Any counterclaim or set-off defence shall in principle be raised with the Answer to the
Notice of Arbitration. Article 3(3) is applicable to the counterclaim or set-off defence.
11. If no counterclaim or set-off defence is raised with the Answer to the Notice of
Arbitration, or if there is no indication of the amount of the counterclaim or set-off defence,
the Court may rely exclusively on the Notice of Arbitration in order to determine the
possible application of Article 42(2) (Expedited Procedure).
12. If the Respondent does not submit an Answer to the Notice of Arbitration, or if the
Respondent raises an objection to the arbitration being administered under these Rules,
the Court shall administer the case, unless there is manifestly no agreement to arbitrate
referring to these Rules.
Literature
Blessing Marc, Comparison of the Swiss Rules with the UNCITRAL Arbitration Rules and Others,
ASA Special Series No. 22, 17–65; Habegger Philipp, The Revised Swiss Rules of International
Arbitration – An Overview of the Major Changes, ASA Bull 2/2012, 269–311; Peter Wolfgang,
Some Observations on the New Swiss Rules of International Arbitration, ASA Special Series No.
22, 1–15.
Other Institutional Rules
Art. 4–6 ICC; Art. 1–2 LCIA; Art. 1–6 SCC; R38–R39, R52 CAS; Sect. 4, 6–11 DIS; Art. 7–9 VIAC;
Art. 3–4 SIAC; Art. 4–5 HKIAC; Art. 9–15 CIETAC; Art. 2–3 AAA/ICDR; Art. 6–12 WIPO; Rule 1–4
ICSID.
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I Changes to Swiss Rules 2004

1 Few changes have been made to Art. 3 Swiss Rules during the 2012 revision.
1a These modifications include a variation to the wording of Art. 3 to account for the possibility that
a tribunal constituted under the Swiss Rules could be comprised of a variable number of
arbitrators, and need not necessarily be limited to the option of either a sole arbitrator or a tribunal
of three arbitrators (although in practice these are by far the most common configurations). This
variation is reflected in the revised wording of Art. 3(3)(h) and 3(7)(f) (previously Art. 3(4)(b) and 3(8)
(b)).
1b Also, Art. 3(3)(h) and 3(7)(f) now provide that, where the parties' agreement so requires, the
parties must (instead of “may”) designate one or more arbitrators in the Notice of Arbitration and
in the Answer to the Notice of Arbitration, respectively. The purpose of this revision is to accelerate
the constitution of the arbitral tribunal.
1c Furthermore, Art. 3(3)(g) and 3(7)(e) now require that the parties provide their proposals as to
the number of arbitrators, the language of the proceedings and the seat of the arbitration (if
they have not previously agreed on these issues) in the Notice of Arbitration and in the Answer to
the Notice of Arbitration, respectively. The purpose of this revision is to provide the Court or the

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 arbitral tribunal, at the earliest possible point in time, with all necessary information on procedural
issues on which a decision must be rendered rapidly in case of a disagreement between the
parties (Habegger, ASA Bull 2/2012, 275).
1d In addition and more importantly, changes have been made to Art. 3(6) and 3(12) concerning the
transmission of the Notice of Arbitration to the respondent and the timing of the Court's prima facie
control of jurisdiction. By contrast to the Swiss Rules 2004, the Secretariat must, under the
revised Art. 3(6), notify the Notice of Arbitration to the respondent without delay even if there is
manifestly no agreement to arbitrate referring to the Swiss Rules. Pursuant to the revised Art. 3(12),
if the respondent does not submit the Answer to the Notice of Arbitration or raises an objection to
the arbitration being administrated under the Swiss Rules, the Court shall administer the case,
unless there is no agreement to arbitrate referring to the Swiss Rules. Thus, according to the
revised Swiss Rules, the review as to whether there is manifestly no agreement to arbitrate under
the Swiss Rules will no longer take place immediately after the receipt of the Notice of Arbitration
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and before its communication to the respondent(s) (as was the case under the Swiss Rules 2004),
but at a later stage. This amendment was prompted by the idea that the respondent may agree to
arbitration under the Swiss Rules even if the contract in question does not contain any provision to
that effect or provides for another dispute resolution clause. In such a case, the respondent's
agreement cures the lack of a reference in the contract to arbitration under the Swiss Rules. Unless
the respondent expressly agrees to submit the dispute to arbitration under the Swiss Rules, the
Court may refuse to administer the arbitration if it considers that there is manifestly no agreement to
arbitrate under the Swiss Rules. Situations where the Court will need to decide whether or not to let
the case proceed include those in which the respondent does not file an Answer to the Notice of
Arbitration or raises an objection to the arbitration being administered under the Swiss Rules, as
provided under Art. 3(12). These modifications to Art. 3 concern the timing of the Court's prima
facie review of jurisdiction (Art. 3(12)). The standard of review which is to be applied under Art.
3(12) continues to be the same as the one applicable under the Swiss Rules 2004. The refusal to
administer a case under the Swiss Rules will remain the exception and will be limited to those
cases where it is evident that no agreement to arbitrate referring to these rules exists (Art. 3 N 20).
1e Lastly, the contents of former Art. 3(12) and 3(13) of the Swiss Rules 2004 has been moved to
other provisions of the revised Swiss Rules. Art. 3(12) of the Swiss Rules 2004, concerning the
transmission of the file to the arbitral tribunal, is now found in Art. 5(5) (Art. 5 N 39), and Art.
3(13), addressing representation, has been reproduced, in part, in Art. 15 (Art. 15 N 23a).

II Commencement of Arbitration (par. 1 and 2)

2 Art. 3 first deals with what is usually described as the commencement of arbitration, namely the
filing of the Notice of Arbitration. The Swiss Rules use the term “Notice of Arbitration” which is
equivalent to a “Request for Arbitration” or a “Demand for Arbitration”, and corresponds to a
document which informs the other party or parties in unambiguous terms that a specific dispute
between the parties is being referred to arbitration (Lew/Mistelis/Kröll, N 20.33).
3 Art. 3(1) provides that a party seeking to initiate recourse to arbitration under the Swiss Rules
shall do so by filing a Notice of Arbitration (“initiating document”) to the Secretariat. The approach
set forth under Art. 3(1) is
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slightly different from the one set by the UNCITRAL Rules 2010, whereby the claimant is required to
communicate the Notice of Arbitration directly to the other party or parties (Art. 3(1) UNCITRAL) –
which is logical given that the UNCITRAL Rules apply to ad hoc arbitrations, but is similar to the ICC
Rules (Art. 4(1) ICC) and most other institutional arbitration rules (Art. 1(1) LCIA; Art. 2 and 4 SCC;
Art. 4(1) HKIAC; Art. 2(2) AAA/ICDR).
4 Art. 3(2) provides that the relevant date for the commencement of arbitration shall be the
date on which the institution receives the Notice of Arbitration. The ICC Rules contain a similar
provision (Art. 4(2) ICC) (as do several other institutional rules, e.g., Art. 1(1) LCIA; Art. 4 SCC; Art.
4(2) HKIAC; Art. 2(2) AAA/ICDR). By linking the commencement of the arbitration to the receipt of
the Notice of Arbitration by the Secretariat, the Swiss Rules ensure that the parties will have no
difficulty in establishing the date of its commencement. Under certain arbitration rules – the
UNCITRAL Rules for example (Art. 3(2) UNCITRAL) – the receipt of the initiating document by the
respondent is the relevant date for the valid commencement of the arbitration. The disadvantage of
this solution, however, is that it may be difficult, or sometimes even impossible, to locate the
respondent or to serve the Notice of Arbitration upon it, thereby possibly delaying or preventing the
commencement of the arbitration. In addition, in such a case, the actual date of receipt of the
initiating document by the respondent may be subject to dispute.
5 Based on the plain language of Art. 3(2), it is the date of receipt of the Notice of Arbitration by

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 the Secretariat which is relevant for determining the date on which the arbitration will be deemed as
having commenced, and not the date on which the Notice of Arbitration is dispatched to the
Secretariat. It therefore follows that a party wishing to preserve its claim(s) prior to the expiration of
an applicable limitation period must account for the necessary time needed for the Notice of
Arbitration to be delivered to the Secretariat (Art. 3 N 6–7).
6 The provision set out in Art. 3(2) does not conflict with Art. 181 PILS (applicable to international
arbitrations seated in Switzerland) or Art. 372 CCP (applicable to domestic arbitrations in
Switzerland), which address the pendency of arbitration proceedings (Art. 18 N 6). These
provisions provide that, when the parties have not named the arbitrators in their arbitration
agreement, arbitration proceedings shall be deemed as “pending” once a party initiates the
procedure for the constitution of the arbitral tribunal (PILS (Basel) 2007-Vogt, Art. 181 N 8). Swiss
commentators are of the opinion
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that, where the arbitration agreement refers to institutional rules of arbitration, the point in time in
which the proceedings become pending is governed by the provisions of these rules on the
commencement of arbitration and the constitution of the arbitral tribunal (Berger/Kellerhals, N 934;
Poudret/Besson, N 566). By electing the Swiss Rules, and in particular Art. 3(2) of said rules,
parties to an arbitration seated in Switzerland will be considered as having entered into a valid
agreement regarding the date of commencement of the proceedings for lis pendens purposes
(Berger/Kellerhals, N 934).
7 The date of commencement of arbitration may have a number of additional legal
consequences, particularly regarding the merits of the dispute and the compliance with time
limitation periods. Under most laws, the commencement of arbitration proceedings has the effect of
fulfilling any time limitation requirements. The time-limits can be contractual or statutory, depending
on the facts of a given case and the applicable law. Provisions contained in the procedural rules
agreed upon by the parties or in the applicable arbitration law concerning the commencement date
of an arbitration may establish independent criteria for the interruption of any applicable periods of
limitation. To ensure that the time limitation applicable under the substantive law has been met, one
should perform a cross-check against the various requirements (Berger, Arbitration, 376).

III Notice of Arbitration (par. 3-6)

8 Pursuant to Art. 3(3), the Notice of Arbitration must include the following information:
(i)a demand that the dispute be referred to arbitration;
(ii)the contact information of the parties and of their representative(s);
(iii)a copy of the arbitration agreement on the basis of which the request for arbitration is made (Art.
3 N 8d);
(iv)a reference to the contract or other legal instruments underlying the dispute;
(v)the general nature of the claim and an indication of the amount involved, if any (Art. 3 N 8c);
(vi)the relief or remedy sought (Art. 3 N 9); and
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(vii)a proposal as to the number of arbitrators, the language and the seat of the arbitration, if the
parties have not agreed on these issues previously (Art. 3 N 1c), and the claimant's designation of
arbitrator(s) if the parties' agreement so requires (Art. 3 N 9a).
8a The Notice of Arbitration must also contain a confirmation of payment of the Registration Fee
(Art. 3 N 10).
8b Pursuant to Art. 3(4), additional elements which may also (but which do not have to) be
included in the Notice of Arbitration involve the claimant's proposals for the appointment of a sole
arbitrator as referred to in Art. 7 and the Statement of Claim as referred to in Art. 18.
8c Art. 3(3)(e) requires that the Notice of Arbitration include a description of the general nature of
the claim and an indication of the amount involved, if any. Although calling for the supply of a
minimum amount of information, this provision nevertheless gives the claimant the freedom to
decide how much detail to provide in its Notice of Arbitration, both with respect to the facts as well
as with respect to the legal basis for its claim(s). The description of the general nature of the claim,
together with the relief or remedy sought (Art. 3 N 9), will often dictate the general framework of the
arbitration and will provide an initial indication of the overall complexity of the case.
8d In terms of supporting documentation, the Swiss Rules only require the claimant to file a copy
of the arbitration agreement that is invoked (Art. 3(3)(c)). The claimant is however not required to
submit all, or even the bulk, of the evidence upon which it relies, although nothing prevents a

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 claimant from submitting as much supporting documentation as it may wish together with its Notice
of Arbitration.
8e In other words, while in practice the Notice of Arbitration is often a short document, nothing
prevents a claimant from filing a more detailed Notice of Arbitration under the Swiss Rules. As
mentioned above, the Swiss Rules also provide for the possibility that a claimant may elect to file
a full Statement of Claim from the outset. This election can be made under Art. 3(4) (b). A
benefit often associated with such an election is that it may have the effect of expediting the
proceedings. The content of the Statement of Claim, irrespective of the time in which it is filed, must
nevertheless fulfil the requirements of Art. 18 (Art. 18 N 7–16).
9 As concise as it may be, the Notice of Arbitration must however set out the relief or remedy
sought by the claimant (Art. 3(3)(f)). The provision
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of this information, which must be set out in sufficient detail to allow a proper identification of the
subject-matter of the dispute, is a conditio sine qua non for the pendency of the arbitration and its
legal consequences (Art. 3 N 6–7) (Berger/Kellerhals, N 936). A claimant may nonetheless
subsequently amend or supplement its claim(s) later on in the proceedings according to Art. 20.
9a Pursuant to Art.3(3)(h), the Notice of Arbitration must also contain the claimant's designation
of one or more arbitrators“if the parties' agreement so requires”. Where the arbitration
agreement specifically provides that the claimant shall designate one or more arbitrators, it is clear
that the claimant must do so in the Notice of Arbitration (unless the parties have agreed otherwise,
e.g. if they have agreed on a different time-limit for the appointment of the arbitrators). Where the
arbitration agreement simply provides that the arbitral tribunal shall be composed of three
arbitrators, without specifying how or when these arbitrators are to be designated, it is questionable
whether the claimant is already required to designate its party-appointed arbitrator in the Notice of
Arbitration. In our view, Art. 3(3)(h) must be read in conjunction with Art. 8(1) and 8(2). Art. 8(1)
provides that where a dispute between two parties is referred to a three-member arbitral tribunal,
each party shall designate one arbitrator, unless the parties have agreed otherwise. Art. 8(2) adds
that if a party fails to designate an arbitrator “within the time-limit set by the Court or resulting from
the arbitration agreement”, the Court shall appoint the arbitrator. It could be argued that, where the
arbitration agreement simply provides for a three-member arbitral tribunal without specifying how or
when these arbitrators are to be designated, the claimant is nonetheless required to designate an
arbitrator in the Notice of Arbitration given that, under Art. 8(1), each party shall designate an
arbitrator and that this provision forms part of the “parties' agreement” within the meaning of Art.
3(3)(h) (concurring Art. 8 N 8). Be that as it may, in order to avoid any argument that the Notice of
Arbitration was incomplete due to the fact that it did not contain the required designation of an
arbitrator by claimant pursuant to Art. 3(3)(h), the safe course of action for a claimant, in our view, is
to include such designation in the Notice of Arbitration, even if the arbitration agreement does not
expressly make it compulsory to do so. Should the Secretariat consider that the arbitration
agreement required the claimant to designate an arbitrator in the Notice of Arbitration, but that the
claimant failed to do so, the claimant should be given an opportunity to remedy this defect in
accordance with Art. 3(5) (Art. 3 N 11).
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10 The Notice of Arbitration must also contain a confirmation of the payment by the claimant of a
Registration Fee. The payment does not have to be “included” as such in the Notice of Arbitration.
In our opinion, the provision of Art. 3(3)(i) has to be understood as requiring the payment of the
Registration Fee to be made in order for the arbitration to be deemed to have commenced
pursuant to Art. 3(2). It also should be considered that the payment is effective only when the funds
have been received by the Swiss Chambers' Arbitration Institution. The stringency of this provision
is however tempered by Art. 3(5) (cf. Appendix B N 1).
11 If the Notice of Arbitration is received without the requested number of copies, or the
Registration Fee has not been paid, or the Notice of Arbitration is otherwise deemed incomplete,
the Secretariat may request the claimant to remedy the defect within an appropriate time-limit in
accordance with Art. 3(5). This provision is typical in institutional arbitration. For example, a similar
provision can be found in the ICC Rules (Art. 4(4) ICC). The time granted to remedy any defects of
the Notice of Arbitration will be at the discretion of the Secretariat and may depend on the
circumstances and the defect that has to be remedied. A time-limit of ten to fifteen days should
typically be sufficient. According to the last sentence of Art. 3(5), should the claimant comply with the
directions and deadline set forth by the Secretariat to remedy the defect, the Notice of Arbitration
will be deemed to have been validly filed “on the date when the initial version was received”. As
such, an arbitration will be deemed to have commenced pursuant to Art. 3(2) on the date the Notice
of Arbitration is received by the Secretariat, irrespective of the fact that the claimant may have been
asked to remedy a defect according to Art. 3(5) within a specified time period.

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 12 According to Art. 3(6), the Secretariat is in charge of the transmission of the Notice of
Arbitration, and any exhibits included therewith, to the respondent and is required to do so without
delay (Art. 3 N 1d).

IV Answer to the Notice of Arbitration (par. 7–10)

13 According to Art. 3(7), the respondent shall submit an Answer to the Notice of Arbitration
(“Answer”). The Answer will provide information which will be useful for the proper understanding of
the frame of the dispute prior to the constitution of the arbitral tribunal.
14 The time-limit set to file the Answer is thirty days, which is in line with other institutional rules
(Art. 5(1) ICC; Art. 2(1) LCIA; Art. 3(1) AAA/ICDR;
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Art. 5(1) HKIAC). This time-limit is, however, subject to possible extension according to Art. 2(3).
There is no sanction specified in the Swiss Rules against a respondent who fails to submit its
Answer within the time period set forth in Art. 3(7). In particular, it is likely that an arbitral tribunal will
take into account a late Answer, in order to ensure the validity of the award as regards to the
respondent's right to be heard (Art. 28 N 31). The party which does not file its Answer within the
period specified in the Swiss Rules however runs the risk of being barred from participating in the
nomination procedures regarding the designation and appointment of the arbitrators (Art. 8(2) and
8(5)).
15 With regard to the content of the Answer, Art. 3(7) sets out a mandatory list of what shall be
included, namely:
(i)the contact information of the respondent and of its representative(s);
(ii)any plea that an arbitral tribunal constituted under the Rules lacks jurisdiction (Art. 3 N 15c);
(iii)the respondent's comments on the particulars set out in the Notice of Arbitration regarding the
general nature of the claim and the amount involved;
(iv)the respondent's answer to the relief sought by the claimant;
(v)the respondent's proposal as to the number of arbitrators, the language and the seat of the
arbitration, if the parties have not agreed on these issues previously (Art. 3 N 1c); and
(vi)the respondent's designation of one or more arbitrators if the parties' agreement so requires
(Art. 3 N 9a).
15a As with the Notice of Arbitration, the Answer may also include the respondent's proposal for
the appointment of a sole arbitrator as referred to in Art. 7 and the Statement of Defence as
referred to in Art. 18.
15b As is the case for the Notice of Arbitration, the Swiss Rules do not impose any rigid
requirements regarding the amount of detail to be provided in the Answer with respect to the
substance of the case. Art. 3(7)(c+d) simply specify that the Answer shall include the respondent's
comments on the claimant's description of the general nature of the case and the respondent's
answer to the relief sought by the claimant. How much the respondent chooses to say about the
substance of the case in its Answer will generally depend on the circumstances of the case,
including in particular the content of the Notice of Arbitration.
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15c According to Art. 3(7)(b), the Answer shall, “to the extent possible”, contain any plea that the
arbitral tribunal to be constituted under the Swiss Rules lacks jurisdiction. Art. 21(3) further provides
that, as a rule, any objection to the jurisdiction of the arbitral tribunal shall be raised in the
Answer and in no event later than in the Statement of Defence referred to in Art. 19, or, with respect
to a counterclaim, in the reply to the counterclaim. Thus, under the Swiss Rules, a plea of lack of
jurisdiction can be raised even after the filing of the Answer. That being said, a respondent wishing
to raise such a plea must also be attentive to the possible requirements of any arbitration laws that
may be applicable to the arbitration. For example, under Swiss arbitration law, any plea of lack of
jurisdiction must be raised prior to any defence on the merits (Art. 186(2) PILS). When the
applicable lex arbitri contains such a provision or a similarly drafted provision, the Answer as
described in Art. 3 of the Swiss Rules may be considered as a submission on the merits. In such a
case, a respondent which files its Answer without pleading the lack of jurisdiction may be deemed
as having accepted jurisdiction of the arbitral tribunal or at least as having waived its right to
challenge jurisdiction for the rest of the proceedings (Poudret/Besson, N 471; PILS (Basel)-
Wenger/Schott, Art. 186 N 53).
16 Art. 3(10) addresses the possibility of raising a counterclaim or a set-off defence (Art. 21 N
30–37) which according to such provision shall “in principle” be raised in the respondent's Answer.

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 Based on the wording of Art. 3(10), a respondent should not be precluded from raising a
counterclaim or a set-off defence at a later stage in the proceedings. The Swiss Rules leave room
for some flexibility and allow the respondent to file any counterclaim or set-off defences in the
proceedings following the filing of the respondent's Answer (Blessing, ASA Special Series No. 22,
30). The same flexibility exists under the ICC Rules (Art. 5(5), 23(4) ICC; Derains/Schwartz, 69–70)
and the UNCITRAL Rules (Art. 4(2)(e) and 21(3) UNCITRAL Rules, where the respondent may
include in its response to the notice of arbitration a brief description of its counterclaim(s) or set-off
defence but may also choose to wait until the filing of its statement of defence to do so).
17 The Swiss Rules do not expressly prohibit an arbitral tribunal's ability to hear a counterclaim.
Unless otherwise prohibited under the applicable lex arbitri, according to the Swiss Rules any
counterclaim which is within the scope of the parties' arbitration agreement can be raised by the
respondent in the proceedings (Poudret/Besson, N 574; PILS (Basel)-Wenger/Schott, Art. 186 N
38). With regard to the arbitral tribunal's jurisdiction to hear a set-off defence, an express allowance
is made in Art. 21(5) (Art. 21 N 35–37).
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V Amount in Dispute (par. 11)

18 Pursuant to Art. 3(11), if no counterclaim or set-off defence is raised with the Answer, or if there
is no indication of the amount of the counterclaim or set-off defence, the Court may rely exclusively
on the Notice of Arbitration to determine the possible application of the Expedited Procedure of
Art.42. This provision is important to determine the amount in dispute and decide whether or not
the Expedited Procedure is applicable (Art. 42 N 20). The amount in dispute corresponds to the
addition of the amounts sought in claims and in counterclaims as well as the amount of set-off
defences, if any. As long as the law governing the merits characterizes the set-off as a defence (as
is the case under both Swiss and German law), the amount of the set-off defence should, in our
view, be deemed to be included in the claim against which the set-off is invoked. The Swiss Rules
have however taken a different position and include the amount of the set-off claim in the calculation
of the total amount in dispute (Art. 42 N 21).

VI The Court's prima facie Review of Jurisdiction (par. 12)

19 Under the revised Swiss Rules, the Secretariat must send the Notice of Arbitration to the
respondent even if there is manifestly no agreement to arbitrate referring to the Swiss Rules,
thereby enabling the respondent to agree to arbitrate under the Swiss Rules even if the relevant
contract does not contain any provision to that effect (Art. 3 N 1d). However, except where the
respondent expressly agrees to submit the dispute to arbitration under the Swiss Rules, the Court
may subsequently refuse to administer the arbitration if it considers that there is manifestly no
agreement to arbitrate under the Swiss Rules. This power is the gatekeeper function of the
Court. Situations where the Court will decide whether or not to let the case proceed include those in
which the respondent does not file an Answer or raises an objection to the arbitration being
administered under the Swiss Rules (Art. 3(12)).
20 The standard of review is whether there is “manifestly” no agreement to arbitrate under the
Swiss Rules. The refusal to administer an arbitration under the Swiss Rules should therefore remain
exceptional and limited to those cases where it is clear that no agreement to arbitrate according to
the Swiss Rules exists. The applicable test is significantly less mechanical than that provided for
under the ICC Rules (Art. 6(3) and 6(4) ICC Rules).
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21 Should the Court decide that the arbitration ought to continue, the Court's decision will not be
definitive. Under such circumstances the parties shall maintain the right to put forth the issue of the
arbitration agreement's validity to the arbitral tribunal. The Court's examination does not limit in any
way the arbitral tribunal's power to decide on its own jurisdiction (Poudret/Besson, N 468).
22 If, however, the Court decides not to administer the arbitration on the grounds of Art. 3(12), the
claimant may have the possibility to request a state court at the seat of arbitration to appoint the
arbitrator(s). This, for example, would be possible for arbitrations seated in Switzerland and France
(Poudret/Besson, N 468).
P 51
References
*)
Philippe Bärtsch/Angelina M. Petti: The authors have prepared the commentary to this article on the
basis of that of the first edition made by Philippe Gilliéron/Luc Pittet.

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