The issue is whether interim awards have to be challenged immediately or only together with the final award.
For many years, the answer turned on whether an interim award resulted in "irreparable damage" to a party. The Swiss Supreme Court has recently changed this practice. The answer now depends on whether an interim award is characterized as a partial award or as an interlocutory decision.
Partial award (sentence partielle stricto sensu; echter Teilentscheid ou Teilentscheid im engeren Sinne) means any decision disposing of part of the parties' claims or counterclaims. Partial awards are now treated like final awards: they have to be challenged immediately (i.e. within 30 days).
Interlocutory decision (or award) (decision incidente or préjudicielle; Vor- or Zwischenentscheid) means any decision, whether substantive or procedural, which is merely a step towards disposing of a claim or counterclaim. Interlocutory decisions have to be challenged immediately to the extent that they relate to jurisdiction or the appointment of the tribunal. This limitation means that interlocutory decisions have to be challenged immediately if the basis for the challenge is (1) that the tribunal wrongly found or denied jurisdiction, or (2) that the arbitrators’ appointment was improper (art. 190.2 lit. a and b). However, if the ground for the challenge is one of the other three available grounds to challenge awards, namely a lack of due process, a decision granting more than requested or less than conceded, or a violation of public policy (art. 190.2 lit. c, d or e), the challenge has to be filed upon receiving the final award, regardless of whether the interlocutory award results in "irreparable harm" to a party.
The change summarized above results from two decisions of the Swiss the Supreme Court, which are cited below. Further decisions will no doubt clarify the application of the key distinction between the two categories of interim awards: partial and interlocutory.
The new practice departs from the rules applicable to the appeal of interim court decisions, and it is more in line with PIL Act Article 190.3.
Source : A c/ B et ad hoc UNCITRAL Schiedsgericht Genf, September 18, 2003, 4P.74/2003 published as ATF 130 III 76, excerpt in Bull. ASA, 2004.132, and A. B.V. c/ B. et Tribunal arbitral CCI, à Genève, October 6, 2004, 4P.117/2004 published as ATF 130 III 755, excerpt in Bull. ASA, 2004.794. Both decisions are also available from the website of the Swiss Supreme Court, http://www.bger.ch (using the French language version, select "jurisprudence", then "principaux arrêts dès 1954").
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.
