Rechtsmittel gegen Entscheide des juge d'appui bei der internationalen Schiedsgerichtsbarkeit der Schweiz

The author examines whether and by which means the decisions handed down by the State judge giving his support to the arbitral proceeding (juge d'appui) may be appealed. Every relevant Article in the PILA (Private International Law Act) is addressed and analyzed in this regard (Art. 179(2) and (3), Art. 180(3), Art. 183(2), Art. 184(3) and Art. 185) by reference to the present legal doctrine and case law. Concerning the stages of appeal, the view is held that by direct or analogous application of Art. 356(2) CPC (Civil Procedure Code) the juge d'appui has jurisdiction as the sole instance of the Canton to render decisions in support of the arbitral tribunal. On the federal level however, the parties shall have the right to appeal against these decisions by filing a civil law appeal before the Swiss Federal Supreme Court, with the exception of most decisions given by juge d'appui within the meaning of Art. 180(3) PILA. As to this federal appeal, it is established that the case law of the Swiss Federal Supreme Court under the FTA (Act on the Federal Tribunal) indicates the Court's inclination to qualify both negative and positive decisions issued by the juge d'appui as final decisions in terms of Art. 90 FTA. In reference to the upcoming revision of the PILA's 12th Chapter the author concludes that the legislator might implement some clarifications in the current legal framework. It seems particularly advisable to ensure that all relevant Articles in the PILA regarding decisions of the juge d'appui explicitly reference to Art. 356(2) CPC. Moreover, the author is of the opinion that it would also be expedient to specify the

Swiss Patent Jurisprudence 2012

The new Swiss Federal Patent Court, with nationwide first-instance jurisdiction over all civil patent matters, has been operating since January 1, 2012. This article reviews and contextualizes the most important patent cases published in 2012 by the Swiss Federal Patent Court and the Swiss Federal Supreme Court. More specifically, the article covers cases on issues such as the evidentiary status of party expert opinions, the formal requirements for requests for injunctive relief, the infringement and non-obviousness tests employed by the Swiss Federal Patent Court, the use of reports and statements from technical judges in lieu of expert opinions, and the procedural devices for the pre-trial taking of evidence, in particular the new patent-specific device of precise description. The author suggests that designing the Federal Patent Court to include technically trained judges may lead to a more automatic adoption of the practices and case law of the European Patent Office. The article concludes that the revamped Swiss patent litigation system has the potential of turning Switzerland into a competitive venue for the adjudication of patent matters in Europe.

The Jurisprudence of the World Trade Organization 2014

In 2014, the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) adopted seven panel reports and six Appellate Body rulings. Two of the cases relate to anti-dumping measures. Three cases, comprising five complaints, are of particular interest and these are summarized and discussed below. China – Rare Earths further refines the relationship between protocols of accession and the general provisions of WTO agreements, in particular the exceptions of Article XX GATT. Recourse to that provision is no longer excluded but depends on a careful case-by-case analysis. While China failed to comply with the conditions for export restrictions, the case reiterates the problem of insufficiently developed disciplines on export restrictions on strategic minerals and other commodities in WTO law. EC – Seals Products is a landmark case for two reasons. Firstly, it limits the application of the Agreement on Technical Barriers to Trade (TBT Agreement) resulting henceforth in a narrow reading of technical regulations. Normative rules prescribing conditions for importation are to be dealt with under the rules of the General Agreement on Tariffs and Trade (GATT) instead. Secondly, the ruling permits recourse to public morals in justifying import restrictions essentially on the basis of process and production methods (PPMs). Meanwhile, the more detailed implications for extraterritorial application of such rules and for the concept of PPMs remain open as these key issues were not raised by the parties to the case. Peru – Agricultural Products adds to the interpretation of the Agreement on Agriculture (AoA), but most importantly, it confirms the existing segregation of WTO law and the law of free trade agreements. The case is of particular importance for Switzerland in its relations with the European Union (EU). The case raises, but does not fully answer, the question whether in a bilateral agreement, Switzerland or the EU can, as a matter of WTO law, lawfully waive their right of lodging complaints against each other under WTO law within the scope of their bilateral agreement, for example the Agreement on Agriculture where such a clause exists.

The Principle of Common Concern and Climate Change

Effective policies combating global warming and incentivising reduction of greenhouse gases face fundamental collective action problems. States defending short term interests avoid international commitments and seek to benefit from measures combating global warming taken elsewhere. The paper explores the potential of Common Concern as an emerging principle of international law, in particular international environmental law, in addressing collective action problems and the global commons. It expounds the contours of the principle, its relationship to common heritage of mankind, to shared and differentiated responsibility and to public goods. It explores its potential to provide the foundations not only for international cooperation, but also to justify, and delimitate at the same time, unilateral action at home and deploying extraterritorial effects in addressing the challenges of global warming and climate change mitigation. As unilateral measures mainly translate into measures of trade policy, the principle of Common Concern is inherently linked and limited by existing legal disciplines in particular of the law of the World Trade Organization.