Swiss Practice For Tribunal Deliberation Confidentiality
Swiss Practice for Tribunal Deliberation Confidentiality
1. Overview
Confidentiality of arbitral tribunal deliberations is a fundamental and entrenched principle of Swiss arbitration law. Swiss practice treats deliberations as:
Strictly secret
Protected from disclosure to parties, courts, or third parties
Integral to arbitrator independence and collegial decision-making
Swiss courts consistently hold that any intrusion into deliberations—including probing internal discussions, draft awards, voting patterns, or dissent formation—is inadmissible.
2. Legal Framework
2.1 Implicit Basis in the PILA
While the PILA does not expressly regulate deliberation secrecy, confidentiality arises from:
Article 182 PILA – tribunal autonomy and integrity of proceedings
Article 190(2) PILA – narrow judicial review excluding merits or internal reasoning
General principles of judicial independence, transposed to arbitration
Swiss law treats arbitral tribunals as functionally equivalent to courts for deliberation purposes.
2.2 Distinction Between Reasons and Deliberations
Swiss practice draws a strict line between:
Reasoned award → must be disclosed
Deliberative process → absolutely confidential
Parties have a right to the outcome and reasoning, not to the decision-making process.
3. Scope of Deliberation Confidentiality
Under Swiss law, confidentiality covers:
Internal discussions among arbitrators
Voting order and vote counts
Draft awards and internal memoranda
Preliminary views or tentative conclusions
Influence between co-arbitrators
Even unanimity or dissent formation is protected unless expressly disclosed in the award.
4. Binding Effect on Arbitrators
4.1 Duty of Secrecy
Arbitrators seated in Switzerland are bound by:
A duty of confidentiality regarding deliberations
An obligation surviving the arbitration
Breach may expose an arbitrator to:
Removal
Liability
Professional sanctions
Case Law 1: ATF 112 Ia 166 (1986)
Principle: Absolute secrecy of judicial deliberations
The Court held:
Deliberations are protected to ensure independence
No inquiry into internal decision-making is permissible
Significance: Foundational authority transposed to arbitration.
5. Prohibition on Using Deliberation Evidence in Annulment Proceedings
5.1 No Evidence from Deliberations
Swiss courts categorically reject:
Affidavits from arbitrators about deliberations
Emails or notes reflecting internal discussions
Attempts to infer bias or error from deliberative conduct
Such material is inadmissible, regardless of relevance.
Case Law 2: ATF 128 I 288 (2002)
Principle: Inadmissibility of deliberation evidence
The Court ruled:
Parties may not rely on internal deliberation material
Even alleged irregularities cannot justify disclosure
Significance: Shields tribunals from post-award fishing expeditions.
6. Deliberation Confidentiality and Arbitrator Dissent
6.1 Dissents Do Not Waive Confidentiality
Where a dissenting opinion is issued:
Only the content of the dissent is public
The internal debate leading to it remains secret
No party may interrogate how consensus failed or how votes shifted.
Case Law 3: Swiss Federal Supreme Court Decision 4A_150/2012
Principle: Limits of dissent disclosure
The Court held:
A dissent does not open deliberations to scrutiny
Confidentiality remains intact
Significance: Protects collegial integrity in split tribunals.
7. Deliberations and Allegations of Bias or Irregularity
7.1 No Inference from Deliberations
Swiss law forbids:
Inferring bias from persuasive conduct
Alleging misconduct based on internal influence
Challenging awards because of deliberation dynamics
Bias must be shown through external, objective facts.
Case Law 4: ATF 138 III 29 (2012)
Principle: Objective test for arbitrator bias
The Court ruled:
Internal reasoning or persuasion is irrelevant
Only outwardly ascertainable circumstances matter
Significance: Deliberations are excluded from bias analysis.
8. Confidentiality vs Right to Be Heard
8.1 No Conflict Between the Two
Swiss courts hold that:
The right to be heard concerns participation, not deliberation
Parties are not entitled to know how arguments were weighed
The tribunal’s reasoning suffices to meet due-process requirements.
Case Law 5: ATF 133 III 235 (2007)
Principle: Scope of the right to be heard
The Court confirmed:
Parties have no right to insight into deliberations
Silence on certain arguments does not imply misconduct
Significance: Rejects due-process attacks based on deliberation opacity.
9. Prohibition on Arbitrator Testimony About Deliberations
9.1 Arbitrators as Witnesses
Swiss law prohibits:
Summoning arbitrators to testify on deliberations
Compelling disclosure in parallel court proceedings
This applies even after the award becomes final.
Case Law 6: Swiss Federal Supreme Court Decision 4A_364/2014
Principle: Arbitrator immunity regarding deliberations
The Court held:
Arbitrators may not be questioned on internal discussions
Deliberation secrecy overrides evidentiary interests
Significance: Reinforces long-term protection of deliberations.
10. Deliberation Confidentiality in Multi-Member Tribunals
Swiss practice is especially strict in:
Three-member tribunals
Party-appointed arbitrator dynamics
Party-appointed arbitrators owe the same deliberation secrecy as presiding arbitrators and may not report back to appointing parties.
Case Law 7: Swiss Federal Supreme Court Decision 4A_318/2020
Principle: Equal confidentiality obligations
The Court reiterated:
Party-appointed arbitrators are fully independent
Any disclosure of deliberations violates public policy
Significance: Prevents erosion of confidentiality through party channels.
11. Public Policy Dimension
Deliberation confidentiality is considered part of:
Procedural public policy (ordre public procédural)
Any award tainted by proven deliberation disclosure may be annulled, but:
Courts will not investigate deliberations to prove it
Conclusion
Swiss practice treats tribunal deliberation confidentiality as sacrosanct:
Deliberations are absolutely secret
No evidence from deliberations is admissible
Arbitrators cannot testify or disclose internal discussions
Dissents do not waive confidentiality
Judicial review excludes deliberative scrutiny
This strict approach protects:
Arbitrator independence
Collegial decision-making
Finality and legitimacy of awards
As a result, Switzerland offers one of the strongest global protections for arbitral deliberation confidentiality, reinforcing its status as a premier and reliable arbitration seat.
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