The Swiss Supreme Court Refits the Frigates—ICC Award Set Aside After More than Thirteen Years

Abstract

In its decision 4A_596/2008 of October 6, 2009, the Swiss Supreme Court vacated and ordered the revision of an ICC Final Arbitral Award rendered on July 31, 1996 in the so-called “frigate-to-Taiwan” case. The Swiss Supreme Court considered that the findings in the French “ordonnance de non lieu” of October 1, 2008 — namely that Mr. Sirven committed a “fraud on the judgment” by submitting a false testimony in the ICC arbitration — were conclusive enough to order the revision of the Award. Article 123(1) of the Swiss Supreme Court Act ( Loi sur le Tribunal Fédéral) allows for the revision of an award when criminal proceedings establish that the award was influenced, to the detriment of the petitioner, by a crime or a felony. This decision, which is the first one in which the Swiss Supreme Court sets aside an award on this legal basis, further clarifies the meaning of Article 123(1) in many respects and calls for some clarifications. Finally, this decision seems to bring this political saga to an end, as it is not anticipated that a new arbitration will be initiated.