| Abstrakt: |
In its decision 4A_148/2023, the Swiss Federal Tribunal confirmed the principle of Article 178.3 PILA pursuant to which the validity of an arbitration agreement may not be contested on the grounds that the main contract is invalid (autonomy/separability of arbitration agreement). While incapacity to contract due to a party's minority has an impact both on the validity of the main contract and arbitration agreement, such a conclusion is not mandatory in other situations. Under Swiss law, for instance the capacity to act is a relative concept that must be assessed individually in relation to a specific act at a specific point in time. It is therefore possible that a party may have the required discernment to grasp the meaning and scope of a main contract, but not those of an arbitration agreement, and vice versa. Although the protection of a civilly incapable person is part of the public policy, a setting-aside of an arbitral award based on a violation of public policy is extremely rare. [ABSTRACT FROM AUTHOR] |
