Newsletter - 1/2017. Topics: What's Next? Revision of the Swiss Rules of Commercial Mediation: Call for feedback, information and ideas

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1 Newsletter - 1/2017 Topics: What's Next? Revision of the Swiss Rules of Commercial Mediation: Call for feedback, information and ideas Takeaways from the 2017 SCAI Innovation Conference Recent Case Law of the Swiss Federal Supreme Court Upcoming Events & Save the Dates Jop Opening in Zurich Move of Zurich offices - 2 day closing Past Events & Pictures WHAT'S NEXT? Revision of the Swiss Rules of Commercial Mediation Call for feedback, information and ideas In our last newsletter, you would have read about SCAI's latest innovation: the one-of-akind turbo customizable arbitration clause, which allows companies to agree in advance on standard, expedited or super-expedited arbitration proceedings, in conjunction with the option to mediate at any time during the proceedings. You may also have attended our monthly Mediation Breakfast on 1 February, during which we reviewed and debated new trends for hybrid dispute resolution processes, including Med/Arb, Arb/Med, and the most recent Arb/Med/Arb procedure. Finally, you may have heard about, or participated in, SCAI's very first Innovation Conference on 2 February 2017, at which we discussed procedural and technical innovations aimed at expediting arbitration proceedings even more in the future. SCAI is working on its next projects for this year, most notably the revision of the Swiss Rules of Commercial Mediation. For the purpose of this revision, we are calling upon all of our readers and users of the Rules to provide feedback on the current Rules, share relevant experience and provide ideas for the revised version. We strongly encourage you to participate in the process, tell us what you believe should be included, or should not be included, in the revised version and why, including on the basis of any experience you may have had and you believe is worth sharing with us. We want this revision to be based on a wider consultation, not only of practicioners and mediation specialists, but also of the users of mediation. Please write to us at: office@swissarbitration.org. You are also welcome to join us for a discussion on this topic at our next Mediation Breakfast, which will take place on 5 April 2017 in Geneva (see under Upcoming Events below).

2 Takeaways from the 2017 SCAI Innovation Conference on Expedited Proceedings and their Limits The first SCAI Innovation Conference was successfully held on 2 February 2017 in Geneva. Attendance to the conference was limited to 60 persons and every single seat was filled by arbitration practitioners and professionals from around the world. The goal of the conference was to explore ways to expedite arbitration proceedings, the limits and risks of expedited proceedings, and how traditional methods could be revamped and improved by the use of new formats. The turn-out and the lively discussion which took place during the conference demonstrates the relevance of this topic to the arbitration community. In an effort to keep track of the great ideas shared during the conference as well as allow the debate to continue, SCAI has prepared a report the First Innovation Paper where it has highlighted the main takeaways from the conference. These will serve as discussion points for the arbitration community going forward, and as guiding posts for next years's SCAI Innovation Conference. The main takeaways, in terms of well-received ideas to expedite arbitral proceedings, are the following: Escape Clause: An escape clause from previously agreed expedited proceedings, to be applied by the arbitral tribunal and/or the arbitral institution upon request from a party. Such a clause would allow the parties to agree in advance on expedited proceedings, when signing their contracts, while still allowing them enough flexibility to escape from, or opt out of, such proceedings in case they become impracticable in future disputes. Early Guidance from the Arbitrator: More systematic early guidance by the arbitrators to the parties and their counsel of the arbitral tribunal's views regarding the most relevant substantive aspects of a particular case in order to make expedited proceedings more focused and time-efficient. Such early guidance could, for example, take place in a legal discussion between the arbitral tribunal and counsel at the first organizational conference. Issues Addressed in the Arbitral Award: Input from the parties, at the start of the arbitration proceedings, so as to decide and define the issues they expect the arbitral tribunal to address in the award and how detailed they require the arbitral tribunal to be about certain aspects, such as the procedural history or summary of the facts. The parties may also want to consider deciding that the arbitral tribunal is to give a summary award, or even an oral award. Ex Aequo et Bono/Commercial Considerations: Due consideration to allowing the arbitral tribunal to decide the case ex aequo et bono, or, based primarily on the commercial interests of the parties, to avoid lengthy submissions and pleadings on the applicable law. The parties may also decide that the applicable law shall not, in any event, be the most decisive factor for the arbitral tribunal in reaching its decision. For a more detailed account of the conference, please refer to the First Innovation Paper. The first panel, whose topic was "Expedited Proceedings and their Limits in Traditional Formats". From left: Ms. Ulrike Gantenberg, partner of Heuking The second panel, whose topic was "Expedited Proceedings in New Formats". From left: Mr. Heiner Kahlert, partner of Martens Rechtsanwälte; Mr. Jan

3 Kühn Lüer Wojtek; Mr. Boris Vittoz, partner of CPV; and Dr. Rafal Morek, partner of K&L Gates. Heiner Nedden, partner of Hanefeld Rechtsanwälte; and Ms. Heike Wollgast, Senior Legal Officer at WIPO. The Conference was well attended by 60 participants from all around the world who contributed to the important discussion and connected with colleagues. Ms. Sandra De Vito Bieri, partner of Bratschi Wiederkehr & Buob, and Mr. Simon Gabriel, partner of Gabriel Arbitration, gave their concluding remarks and shared the main take-aways from the day. Recent Case Law of the Swiss Federal Supreme Court In a recent judgment, the Swiss Federal Supreme Court addressed the issue of whether a decision of the SCAI Arbitration Court can be subject to an appeal or application to set aside before the Supreme Court. The arbitration clause, on which the parties relied, did not provide for the number of arbitrators and the parties were unable to reach an agreement on that issue. As a result, the decision was to be made by the SCAI Arbitration Court pursuant to Article 6 (1) of the Swiss Rules of International Arbitration. The Arbitration Court, taking into account all of the relevant circumstances, decided that the case should be referred to a Sole Arbitrator. An application to set aside was brought against that decision. The Supreme Court held that a decision of the SCAI Arbitration Court could not be challenged as it did not qualify as an arbitral award and the application was rejected as inadmissible. In essence, this judgment means that decisions made by the SCAI Arbitration Court according to the Swiss Rules, which aim to avoid a dead-lock in arbitration proceedings and make sure that they run smoothly and efficiently, cannot be challenged; only the decisions of the arbitral tribunal / a sole arbitrator can be. This also confirms yet again the arbitrationfriendly, "hands-off" approach of the Supreme Court and the Swiss regime. Upcoming Events We are pleased to invite you to the forthcoming event organized by SCAI: Le Règlement suisse d'arbitrage au service des entreprises Serving the needs of companies: the Swiss Rules of International Arbitration 17 March 2017, 9:00-11:00, Swiss Embassy, 142 Rue de Grenelle, Paris This conference (in French) will serve to introduce the Swiss Rules of International Arbitration to Paris-based entrepreneurs, business developers, lawyers, and legal counsel. The focus will

4 be on how companies signing international contracts can benefit from SCAI's cost-efficient and expeditious dispute resolution services (both arbitration and mediation). Distinguished French and Swiss arbitration practitioners and SCAI representatives will be present, most notably Mr. Philippe Pinsolle, partner of Quinn Emanuel in Paris; Mr. Boris Vittoz, partner of CPV Partners in Lausanne; Mr. Christophe Ingrain, partner of Darrois Villey Maillot Brochier in Paris; Mr. Vincent Subilia, Deputy Director of CCIG and SCAI Board Member; Ms. Caroline Ming, SCAI Executive Director; and Ms. Jennyfer Dreyfuss, Legal Counsel of SCAI in Geneva. There is no attendance fee, but registration is required. Attendance is limited to 50 persons and applications are accepted on a first come, first served basis. More information and registration is available here. We look forward to seeing many of you in Paris! Save the Dates! We also invite you to note the following events in your calendars: Arbitration Breakfast in Zurich: E-Discovery in Arbitration Proceedings Zurich, 16 March 2017, 08:00-09:30. ZHK, Selnaustrasse 32, 5th floor. This event will focus on the current issue of e-discovery in arbitration proceedings. It is free of charge, but registration is required. More information and registration is available at zurich@swissarbitration.org. ArbitralWomen Breakfast Meeting and Panel Discussion: Gathering and Weighing Evidence in Parallel Emergency Arbitration Proceedings Milan, 31 March 2017, 07:15-08:45. Organized by ArbitralWomen in cooperation with SCAI and DLA Piper. This breakfast meeting will take place at DLA Piper's office at Via della Posta 7, Milan, as the arbitration community will be gathered in the city for the IBA 20th Annual International Arbitration Day Conference. A shuttle service, generously sponsored by SCAI, will be provided between Marriott Hotel and the venue, to ensure participants arrive on time for the IBA Conference's first session. The full program is available here. Mediation Breakfast - P'tit Déjeuner de la Médiation - Revision of the Swiss Rules of Commercial Mediation Geneva, 5 April 2017, 08:15-09:30. Organized by the CSMS (Suisse Romande), CCIG and SCAI at CCIG offices, 4, bd du Théâtre, 2nd floor, Geneva. This mediation breakfast will be the 2nd event organized on this theme and will allow mediation users and practitioners to discuss potential areas of improvement of the Swiss Rules of Commercial Mediation with SCAI. There is no fee to attend and registration is not needed. Further similar events may be held in other cities upon request to office@swissarbitration.org. IV Annual RAA Conference and Members' Meeting Moscow, 20 April 2017, at 08:30-18:30. Venue: Marriott Grand Hotel, 26/1 Tverskaya Street, Moscow. Organized by the Russian Arbitration Association (RAA). Topics will include: Russian arbitration reforms, 2016 landmark arbitration cases in Russia, inquisitorial rules of evidence and women in arbitration. The full program and registration details are available here. ~~~ A full list of all our events is available on our website. Job Opening in Zurich SENIOR INTERNATIONAL LEGAL COUNSEL HEAD OF SCAI ZURICH OFFICE We are currently looking for a meticulous and dynamic legal counsel, with an excellent command of both German and

5 English, to head our Zurich office. The legal counsel will administer arbitration and mediation cases under the Swiss Rules, as well as perform various other activities, including marketing and promotion of our services. Experience in arbitration and mediation is required and any additional language is an advantage. A part-time position may be considered. Interested candidates should send their CV, main recommendation letters and Cover Letter, indicating dates of availability, desired working time percentage (full/part time) and work permit status, to: c.ming@swissarbitration.org. Move of the SCAI Zurich office and Zurich Chamber of Commerce Please be informed that the Zurich office of the SCAI Secretariat and the Zurich Chamber of Commerce will be moving to Löwenstrasse 11 at the end of April. The office will therefore be closed from the evening of 27 April until 2 May To ensure the timely administration of cases during this transition period, we advise parties and counsel to send notices and urgent communications as early as possible by to zurich@swissarbitration.org and to consider sending new cases temporarily to the Geneva office (geneva@swissarbitration.org; postal address here). Past Events The World Litigation Forum in Dubai Ms. Valériane Oreamuno, Senior Legal Counsel of the Secretariat in Geneva, represented SCAI at the World Litigation Forum which took place in Dubai on January Ms. Oreamuno was invited to attend the conference as a speaker and debated on the topic of "Best Practices, Challenges and Solutions in International Arbitration". This conference, attended by in-house counsel and practitioners from the Middle-East, Asia and Europe, was the perfect opportunity to talk with possible future users about the features and advantages of the Swiss Rules of International Arbitration and the practice of the SCAI Arbitration Court. The panel, from left: Mark Kelly, Senior Legal Counsel, Johnson Controls in Dubai; Valériane Oreamuno, Senior Legal Counsel at SCAI in Geneva; Mohamed ElGhatit, Director & Registrar, DIFC LCIA Arbitration Center in Dubai; and Natasha Liston Williams, Global Litigation & Investigations in Paris. Ms. Valériane Oreamuno and Ms. Natasha Liston Williams, Global Litigation & Investigations in Paris. Events in Iran SCAI had the great pleasure of participating in two events in Tehran in February 2017, starting with a discussion with judges and law professors on the enforcement of arbitral awards, organized by Mr. Shariat Bagheri and Mr. Amir Masood Mazaheri, at the University of

6 Judicial Sciences and Administrative Services. The next day, SCAI participated in a seminar organized by the Iran-Switzerland Chamber of Commerce about the role of arbitration and the advantages of inserting a clause referring to the Swiss Rules of International Arbitration in international contracts. With the excellent support of Ms. Assieh Mir of the ISCC, SCAI was represented by Dr. Martin Burkhardt, Dr. Urs Weber-Stecher and Ms. Caroline Ming, while Dr. Ali Naimi, Dr. Gholamreza Rafiei, Dr. Ardeshir Atai and Ms. Parisa Memarian presented the Iranian perspectives. Dr. Shariat Bagheri, President, with Law Professors and Judges at the University of Judicial Sciences and Administrative Services in Tehran, with Dr. Martin Burkhardt, Ms. Caroline Ming, Dr. Urs Weber-Stecher From left: Dr. Martin Burkhardt, Dr. Gholamreza Rafiei, Dr. Ardeshir Atai, Ms. Parisa Memarian, Ms. Caroline Ming, Dr. Urs Weber-Stecher, and Dr. Ali Naimi. P'tit Déjeuner de la Médiation: Revision of the Swiss Rules of Commercial Mediation As a rule, every first Wednesday of each month, SCAI and the CCIG host in their offices in Geneva an 08:00-09:30am Mediation Breakfast organized by the CSMS (Section Romande) gathering mediators and mediation users. This March, the mediation breakfast focused on brainstorming and gathering ideas for the upcoming revision of the Swiss Rules of Commercial Mediation. The moderators were Mr. Jeremy Lack, Independent ADR Neutral and Attorney-at-Law with LAWTECH, and Dr. Jorge Huerta-Goldman, the Managing Director and Founder of TILPA. Further breakfast meetings will be held on the same subject as more time will be needed to gather all ideas, discuss those and allow all interested parties to participate and raise their voice. No registration is required. Invitations are sent to persons having required to be added to the dedicated mailing list but information can also be obtained on our website and from our Geneva office at: geneva@swissarbitration.org. Presentation at the MIDS Program On 10 February 2017, SCAI had the great pleasure of giving a presentation to the talented students of the MIDS program in Geneva (LL.M. in International Dispute Settlement). Ms. Valériane Oreamuno, Senior Legal Counsel of the SCAI Secretariat in Geneva, and Mr. Vincent Subilia, Deputy Director of CCIG and SCAI Board Member, gave a general presentation on the services of SCAI, as well as the main features and advantages of the Swiss Rules of International Arbitration. The SCAI team wishes the students all the best for their future careers in the field of international dispute settlement.

7 The MIDS group together with Ms. Valériane Oreamuno and Mr. Vincent Subilia. This year's MIDS class is composed of 37 students who come from 18 countries around the world. Swiss Chambers' Arbitration Institution Ms. Disa Hjartardóttir & Ms. Caroline Ming, Executive Director and General Counsel Switzerland, 7 March 2017