Protective Measures in Support of Arbitration State Courts' Assistance in Obtaining Evidence for the Purposes of Arbitration Proceedings Balz Gross June 1, 2017

A Case UK Co has purchased airbag parts from a Swedish manufacturer. The supply agreement provides for arbitration in Switzerland. The parts were developed and tested by a Swiss subsidiary. The airbag components are defective; the design seems to be faulty, the defects possibly were already detected during testing. No action was taken to prevent the sale of defective parts. The Swedish manufacturer is in the process of selling its subsidiary to a third party. June 1, 2017

The Issues UK Co needs to secure and obtain evidence regarding the development and testing of the airbag parts. Arbitration specific problems: no power of arbitral tribunal before its constitution no power of arbitral tribunal over third parties no enforcement powers of arbitral tribunal at all is state court assistance possible and efficient? June 1, 2017

State Courts' Assistance in Obtaining Evidence Request Constitution of Tribunal t secure evidence gather evidence assist tribunal | enforce tribunal's orders secure evidence  arbitral tribunal order gather evidence  arbitral tribunal order June 1, 2017

Types of Assistance Assisting the arbitral tribunal assist tribunal and enforce its orders Securing evidence before or after constitution of tribunal interim measures issued by state courts to protect evidence Gathering evidence before or after constitution of tribunal 'pre-trial' evidence taking by state courts disclosure proceedings based on data protection laws production of evidence based on a contractual or statutory right gathering of evidence through criminal proceedings | international legal assistance June 1, 2017

Assist tribunal and enforce its orders Taking of evidence, production, securing evidence Jurisdiction: Only court at the place of arbitration? Right to request: Only arbitral tribunal or also parties? Use of international legal assistance to get assistance from state courts abroad? Hague Convention Proceedings June 1, 2017

Securing Evidence Interim measure, ordered by state court Jurisdiction: Place of arbitration, place where the evidence is? Before OR after constitution of arbitral tribunal At the request of a party OR the arbitral tribunal June 1, 2017

Gathering Evidence (1|2) 'Pre-trial' evidence taking by state courts New provision in Swiss law (same for Sweden, etc.?) Not a discovery, but evidence gathering exercise designed to allow an evaluation of the prospects of a litigation. Excluded by arbitration clause? Jurisdiction, also for foreign proceedings? Only before commencement of arbitration? Only against third parties? June 1, 2017

Gathering Evidence (2|2) Disclosure proceedings based on data protection laws Also if a company's data are affected? Production of evidence based on a contractual or statutory right Excluded by arbitration clause? Gathering of evidence through criminal proceedings | international legal assistance June 1, 2017

Thank you for your attention. Balz Gross balz.gross@homburger.ch T +41 43 222 10 00 Homburger AG Prime Tower Hardstrasse 201 | CH-8005 Zürich www.homburger.ch