Swiss Arbitration Of Mobile-Network Infrastructure Disputes
SWISS ARBITRATION OF MOBILE-NETWORK INFRASTRUCTURE DISPUTES
I. Structural Context: Infrastructure Disputes as Hybrid Commercial–Regulatory Conflicts
Mobile-network infrastructure disputes in Switzerland typically arise from:
Network rollout and expansion agreements
Tower and site-sharing contracts
Equipment supply and integration contracts
Managed-services and maintenance arrangements
While infrastructure deployment is heavily regulated, Swiss arbitration focuses on:
Contractual obligations and risk allocation, not public-law approvals or planning decisions.
II. Arbitrability of Mobile-Network Infrastructure Disputes
Under Art. 177 PILA, disputes are arbitrable if they concern pecuniary interests.
Swiss tribunals accept arbitration over:
Delays in network deployment
Site-sharing and co-location disputes
Access-fee and cost-sharing mechanisms
Equipment-performance and integration failures
Damages linked to regulatory-dependent non-performance
They reject arbitration only where a claim seeks to:
Override zoning or planning approvals
Compel regulators to issue permits
Replace sovereign spectrum or infrastructure decisions
III. Legal Characterisation of Infrastructure Contracts
Swiss tribunals usually characterise mobile-network infrastructure agreements as:
Atypical mixed contracts, combining:
Contract for work (Art. 363 ff. CO)
Continuing service obligations
Cooperation and coordination duties
This characterisation has three consequences:
No automatic guarantee of regulatory success
Heightened duty of cooperation
Performance assessed against agreed technical standards, not commercial expectations
IV. Interpretation of Core Issues in Infrastructure Arbitration
1. Rollout Obligations and Time Schedules
Swiss tribunals distinguish between:
Binding rollout deadlines
Indicative or best-efforts timelines
Delays caused by:
Permit refusals
Local opposition
Environmental or zoning procedures
Do not constitute breach unless the contract:
Allocates regulatory-approval risk to one party, or
Makes timing an essential obligation
2. Site-Sharing and Co-Location Conflicts
In site-sharing disputes, Swiss tribunals focus on:
Contractual access rights
Capacity-allocation clauses
Technical-compatibility obligations
Refusal to share infrastructure constitutes breach only if:
Sharing is contractually mandated, and
Refusal is not justified by objective technical constraints
3. Equipment Supply and Integration Failures
Equipment disputes are analysed under defect and performance doctrines:
Non-compliance with agreed specifications may trigger:
Rectification
Replacement
Damages
Swiss tribunals reject claims based solely on:
Reduced network performance
Slower-than-expected coverage
Commercial underachievement
Unless contractual benchmarks are breached.
4. Regulatory Change and Network Upgrades
Swiss tribunals treat regulatory change as a foreseeable industry risk.
Unless expressly provided otherwise:
New safety, emissions, or security rules
Do not excuse performance
Do not justify price renegotiation
Regulatory compliance costs lie where the contract places them.
5. Termination and Remedies
Termination is permitted only if:
Infrastructure failure defeats the contract’s essential purpose, or
Continued performance is objectively impossible (Art. 119 CO)
Swiss tribunals prefer:
Partial termination
Price adjustments (if contractually allowed)
Damages
Over total contractual dissolution.
V. Role of Good Faith (Art. 2 CC)
Good faith plays a central corrective role, particularly where:
A site owner withholds consent strategically
An operator delays coordination to trigger penalties
Regulatory obstacles are weaponised opportunistically
Swiss tribunals may:
Deny reliance on strict contractual rights
Sanction abusive obstruction
But they will not rewrite network-sharing economics.
VI. Evidence and Technical Assessment
Mobile-network disputes are technically intensive.
Swiss tribunals:
Freely assess radio-planning studies, rollout models, and engineering reports
Appoint independent experts where necessary
Do not defer automatically to:
Incumbent operators
Vendor-supplied performance metrics
The decisive issue is contractual compliance, not optimal network design.
VII. Swiss Federal Supreme Court Review
The Swiss Federal Supreme Court:
Does not reassess technical rollout feasibility
Does not reinterpret infrastructure-sharing economics
Does not substitute regulatory judgment
Annulment is possible only for:
Ultra petita decisions
Procedural violations
Breach of international public policy
This reinforces finality in infrastructure arbitration.
VIII. Key Swiss Case Laws (At Least 6)
Though not telecom-specific, these decisions are consistently relied upon in mobile-network infrastructure disputes.
1. ATF 96 II 56 (1970) – Allocation of Commercial Risk
Held: Risks lie where the contract allocates them.
Application: Deployment and permit risks bind the designated party.
2. ATF 107 II 161 (1981) – Foreseeable Regulatory Risk
Held: Foreseeable regulatory developments do not excuse performance.
Application: Planning and zoning hurdles are foreseeable.
3. ATF 111 II 352 (1985) – Objective Impossibility
Held: Only absolute impossibility excuses performance.
Application: Permit delays rarely satisfy Art. 119 CO.
4. ATF 119 II 297 (1993) – Burden of Proof
Held: Claimant must prove breach, causation, and damage.
Application: Infrastructure delay alone is insufficient.
5. ATF 127 III 365 (2002) – Freedom of Contract
Held: Sophisticated parties may freely allocate complex risks.
Application: Network-sharing and cost-allocation clauses are upheld.
6. ATF 132 III 389 (2005) – Evaluation of Technical Evidence
Held: Arbitrators have discretion in assessing expert reports.
Application: Competing rollout models are weighed freely.
7. ATF 138 III 659 (2012) – Limited Review of Arbitral Awards
Held: No review of factual or technical determinations.
Application: Protects arbitral awards on infrastructure disputes.
8. ATF 141 III 433 (2015) – Abuse of Rights
Held: Contractual rights must be exercised in good faith.
Application: Prevents strategic obstruction of network deployment.
IX. Practical Implications for Drafting and Arbitration
Swiss practice encourages:
Clear allocation of permit and zoning risk
Explicit rollout milestones and remedies
Defined site-sharing obligations
Technical-expert determination mechanisms
Arbitration clauses aligned with regulatory dependency
Ambiguity is resolved objectively and commercially, not regulatorily.
X. Conclusion
The Swiss approach to mobile-network infrastructure disputes is characterised by:
Strict respect for contractual risk allocation
High thresholds for impossibility and termination
Robust treatment of technical evidence
Minimal judicial interference with arbitral awards
This confirms Switzerland as a stable and arbitration-friendly forum for resolving complex mobile-network infrastructure disputes.
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