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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. Thank you for your attention.
Balz Gross T
Homburger AG
Prime Tower
Hardstrasse 201 | CH-8005 Zürich