Switzerland: Additional Award And Setting Aside Proceedings; Prayer For Relief (Case Note)

Last Updated: 21 April 2011
Article by Frank Spoorenberg

In a recent decision, the Swiss Supreme Court (the "Supreme Court") confirmed that setting aside proceedings are also available against an additional award, including the refusal to issue an additional award. The Supreme Court also confirmed that a request for an additional award has, as such, no impact on other available post-award mechanisms. This decision is also a good illustration of clarification of prayer for relief taking into account the party's entire submission.


For the purpose of this note, the factual background of the case may be summarized as follows: In a WIPO arbitration, based in Geneva, a sole arbitrator awarded interests on damages to a party although the prayer for relief did not expressly refer to interests. The sole arbitrator thereafter rejected a request for an additional award. Both the award on interests and the refusal to issue an additional award were challenged before the Supreme Court.

Supreme Court

The following clarifications on procedural issues are worth emphasizing:

First, the Supreme Court declined to resolve the recurrent controversy regarding the applicability, to international arbitrations, of the CHF 30,000 minimum dispute-value threshold, which applies normally to challenge proceedings in civil matters before the Supreme Court (Swiss Supreme Court Act, Art. 74.1).

Secondly, the Supreme Court confirmed that setting aside proceedings are available against an additional award and clarified, for the first time, that such proceedings are also available against the decision by which an arbitral tribunal refuses to issue an additional award. For the Supreme Court, there is no reason to differentiate this refusal from a refusal to issue a corrected award, which, according to Supreme Court decisions, may be challenged by way of setting aside proceedings

With respect to the impact of a request for an additional award on other post-award mechanisms, the Supreme Court confirmed its longstanding position that :

  1. The submission of a request for an additional award does not suspend the time period for challenging the initial award;
  2. The right to challenge the initial award is not subject to prior filing of a request for an additional award;
  3. If the initial award may be challenged because the arbitral tribunal did not rule on all the prayers for relief (PILA Article 190(2) lit.c, second case), this right to challenge does not prevent the relevant party from seeking an additional award on the omitted prayers; in such a case, the Supreme Court should stay the challenge proceedings until the arbitral tribunal issues its final decision on the request for additional award.

Thirdly, the arbitral tribunal must apply the law, without being limited to the parties' submissions. Therefore, an arbitral tribunal may rely on legal arguments that were not submitted by the parties. In doing so, the arbitral tribunal gives a different legal characterization of the factual background of the case but does not rule on a new claim or an amended claim. Nevertheless, the arbitral tribunal remains at all time bound by the object matter and amount of the prayer for relief, in particular by the limitations or specific legal characterization in the parties' prayer for relief.

In the instant case, the Supreme Court found that awarding interests although such interests were not expressly included in the prayer-for-relief section of the brief did not exceed the claimant's submissions (ultra petita) since (i) Claimant's prayer for relief sought payment of the "2009 minimum royalty to be established definitely once the 2009 turnover is submitted, this means EURO 1,397,883.62 at minimum" (ii) the claimant clearly stated in its brief that the royalties were subject to a 4% interest and (iii) there was no indication of claimant's intent to stop the interest from running at the date of the brief or at the date of the award. Therefore, the Supreme Court found that the above mentioned prayer, duly construed in the light of the Claimant's entire brief, expressed, at least implicitly in a manner which could be identified easily, Claimant's intent to claim for interests to accrue until total payment of the capital. As a corollary, the Supreme Court endorsed the Sole Arbitrator's refusal to award interests on the other party's claim because this party's prayer for relief set forth a limited amount only and nowhere in the brief could the Supreme Court find any indication that this party intended to claim for interests.


The arbitration users will naturally come to the conclusion that, whenever they are seeking payment, they should make sure that (i) their prayer for relief on the merits be limited to the amount to be paid, (ii) this amount be accompanied by "at minimum", "to be further determined in the proceedings" or similar formula, and that (iii) no legal or contractual basis be set forth in the prayers for relief.

For the arbitrators, however, it may be difficult to assess when the ultra petita cap allows them to consider that part of the party's reasoning is actually tantamount to a prayer for relief and when, actually, the infra petita threshold requires them to do so.

Swiss Supreme Court's decision 4A_440/2010. The full text of the decision is available in its original (French) language at http://www.bger.ch/fr/index/juridiction/jurisdiction-inherit-template/jurisdiction-recht/jurisdiction-recht-urteile2000.htm. This decision is also to be published in the Supreme Court's official case reporter.

For further information on this topic please contact Frank Spoorenberg at Tavernier Tschanz by telephone (+41 22 704 3700), fax (+41 22 704 3777) or email spoorenberg@taverniertschanz.com


The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions