By changing the arbitration clause of a framework agreement, the parties did not without more change the arbitration clauses of connected contracts between the same parties if these connected contracts contained their own, different arbitration clauses.
The facts involve a group of contracts having different choice of forum clauses, as follows:
- a 2000 exclusive delivery contract contained a choice of
Zurich courts and Swiss law,
- a 2004 new exclusive delivery contract contained the same
choice of Zurich courts and Swiss law,
- five successive delivery contracts, ranging from 2002 to
2005, contained a choice of Russian Chamber of Commerce
arbitration,
- a 2006 amendment to the two exclusive delivery contracts
replaced the choice of Zurich courts by arbitration under the
rules of the Swiss Chambers of Commerce (aka the "Swiss
Rules").
In 2007, arbitration was initiated under the Swiss Rules clause, seeking relief under the two exclusive delivery contracts as well as some of the five successive delivery contracts.
The arbitral tribunal found jurisdiction over the claims under the exclusive delivery contracts, but not over those under the successive delivery contracts. The Swiss Supreme Court affirmed.
The arbitral tribunal's subject matter jurisdiction turned on whether the arbitration clause agreed in the 2006 amendment also applied to the five successive delivery contracts.
The Court interpreted the 2006 arbitration clause pursuant to which the arbitration was commenced. It did so under Swiss law. Since both the place of arbitration and the proper law of the contract were Swiss, and the parties had not chosen a different law to govern specifically the arbitration clause, the three-pronged test of Article 178(2) of the Swiss PIL Act pointed unequivocally to Swiss law.
The Court applied the same rules of interpretation as those governing private contracts.
It concluded that the 2006 arbitration clause did not apply to the 2002-2005 successive delivery contracts. It reasoned that the latter had their own arbitration clauses, that the two regimes had co-existed for some time, and that therefore the intent of the 2006 amendment to replace the arbitration clauses in the exclusive delivery contracts did not without more extend to the arbitration clauses of the 2002-2005 successive delivery contracts. The arbitration clause of the 2006 amendment made no reference to the 2002-2005 successive delivery contracts. While the 2006 arbitration clause pertained to disputes arising "in connection with" the 2002 and 2004 exclusive delivery contracts, this broad wording could not be construed as encompassing the 2002-2005 successive delivery contracts, because, although they were connected contracts, they had their own different arbitration clauses for disputes arising under them.
The Court stressed, but did not explicit, the difference between the arbitration clause of the 2002-2005 successive delivery contracts (Russian Chamber of Commerce) and that introduced by the 2006 amendment (Swiss Rules).
Swiss Supreme Court decision of February 29, 2008 in X._____ GmbH v. Y._____ Corporation, 4A_452/2007 ( http://jumpcgi.bger.ch/cgi-bin/JumpCGI?id=29.02.2008_4A_452/2007)
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