First Swiss Episode in the National Iranian Oil Company (NIOC) v. State of Israel Saga: recognition of the French juge d’appui’s international jurisdiction and of a fundamental right to an arbitrator

Swiss Federal Tribunal, 1st Civil Law Court,  10 January 2013 – State of Israel v. National Iranian Oil Company (NIOC)

This decision is a sequel to the French Supreme Court’s famous decision of 1 February 2005 recognising, on the basis of denial of justice, the international jurisdiction of the French “juge d’appui” (the “supporting judge”) to designate an arbitrator when a party (the State of Israel) refuses to use its right to do so, despite the absence of any link with France – principle which has, since then, been codified at Article 1505 para. 4 of the French Code of Civil Procedure.

In the present case, the seat of the Artbitral Tribunal was fixed in Geneva only subsequently, in 2004, which explains the Swiss Federal Tribunal’s jurisdiction to decide the challenge brought by the State of Israel to set aside the partial award rendered by the Arbitral Tribunal on 10 February 2012, dismissing the State’s contention that the Artbitral Tribunal was not regularly constituted due to the French judge’s intervention.

The Federal Tribunal dismisses the challenge, refusing to reconsider the merits of an arbitrator’s nomination by a juge d’appui due to one of the parties’ refusal to designate its arbitrator.  It follows from the judgement’s motivation that the decision of a juge d’appui to designate an arbitrator would normally not be res judicata under Swiss domestic arbitration. It should however be otherwise in international arbitration, when the highest instance of a foreign court, i.e., the French Supreme Court, rendered a decision confirming the validity of such designation.

It remains to be seen if the Swiss Federal Tribunal is not creating a duty for State courts to collaborate for the defence of parties’ right to an arbitrator.

The decision is available here.

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