编者按：2016年6月18日，由深圳国际仲裁院（又名“华南国际经济贸易仲裁委员会”，英文简称“SCIA”）和瑞士仲裁协会（英文简称“ASA”）共同主办的“中欧争议解决研讨会暨中欧国际仲裁合作签约仪式”在深圳前海举行。SCIA与ASA等机构签署了合作协议，将加强多元化争议解决机制的创新和交流。活动还得到深圳市律协、瑞士驻广州总领事馆、中国欧盟商会、瑞士商会仲裁院（英文简称“SCAI”）等机构的大力支持。来自瑞士、法国、德国、英国、加拿大、美国、香港和中国内地的境内外专家和专业人士共200余人参加了本次活动并对中欧国际仲裁相关问题进行了深入探讨。本微信公众号将陆续推出研讨会的英文实录稿。

ARBITRATION SWISS STYLE: LOCATION, LAW AND ARBITRATION RULES

THE TRANSCRIPTIONS OF SINO-EUROPEAN DISPUTE RESOLUTION 

SEMINAR(Ⅷ)

瑞士仲裁模式：位置、法律以及仲裁规则

——中欧争议解决研讨会实录（八）

12. The Speech by Mr. Bernhard Meyer, the Vice President of ASA

Good morning, everyone. Let me first tell you how fascinated I am to be here in Shenzhen. I've been in China many times. I've been in Hong Kong even more times. I've never been in Shenzhen. For me, it's the first time. And I was really impressed to see how this area is booming, and how, you know, everything began, actually, in China. I think it's a fascinating place, and I enjoy it, as all my colleagues, to be here. Thank you very much for inviting us and for organising this particular event with the ASA.

Now, the topic which I will address is Arbitration Swiss Style, and I thought I would bring you some Swiss style with my clothing. I first have to explain to you what this is. This is the formal dress of the Swiss folk singers, they odelers, also the Swiss wrestlers and the Swiss alpine horn blowers. So whenever you have a folk festival in Switzerland, you will see this en masse, particularly on the males, because the females have a little bit different one, of course even nicer.

But let's go back to my topic, Arbitration Swiss Style, and the subtopics are location, law, and arbitration rules. I will talk quickly about the location and the law, whereas my colleague Marc will then talk about more details in the arbitration Rules.

The arbitration law in Switzerland is a dual law, just like in China we have adomestic regime which is set down in the civil procedure code, and an international regime, which is already mentioned, which is set down in the Swiss Federal Act, International Private Law. And both regimes have equal treatment of parties and a right to be heard in an adversarial procedure, which must be guaranteed. But apart from that, and you have heard that the Swiss code, the Federal Act, has only very few provisions. That means there is agreat flexibility to shape the arbitration proceeding. Any arbitration rules which observe the limits can be chosen.

Now, it has already been mentioned that Switzerland is a civil law country, andanyone can understand arbitration. You will see our similarities with the Chinese traditions of dispute resolution. In Switzerland, and I'm talking about the State Court now, the judge leads the proceeding. Now, there are built-in settlement rounds even prior to introduction of a lawsuit. If you want to introduce a lawsuit, you first have to go through a conciliation proceeding where a special conciliation judge in that case tries to settle the case. If that is unsuccessful, you do go to court. That still doesn't mean that this isthe end of the negotiation. The judge is allowed and encouraged to make settlement attempts, and he will often do it. A lot of cases in Swiss courts are settled. That's almost the normal case, to get rid of a case. In Swiss court proceedings, there is no pre-trial discovery; no production of documents,with very limited exceptions; there are no written witness statements and no cross-examinations. All these Anglo-Saxon instruments do not exist in a Swiss State Court. Interrogations are done by the judge, who indeed has a very dominant position and is the master of the ceremony. The result of this is inthe Swiss State Court, we normally have very short proceedings compared to common law procedures, and much shorter hearings, perhaps a few days, up to a week. But you would never end up in a Swiss court proceeding which went on for six or seven weeks, which may happen in common law jurisdictions.

So to understand Swiss arbitration law, you also have to look at this arbitrationhistory. The first arbitration tribunal was established in 1911 in Zurich. Up to the middle of the 19th century, this tribunal was conducting arbitration proceedings, but mainly in the domestic context. After World War II, development came up, because arbitration became international. Basically the foreign nations, and particularly East-West disputes, were brought before this arbitration tribunal. The reason, of course, was that Switzerland for a very long time, has been a neutral country and was in between the Eastern and the Western bloc.

In the late 1980s, another strong influence came: the globalisation of businessand very strong Anglo-Saxon influences from the US and the United Kingdom's large law firms. They detected the arbitration market and changed dramatically the picture.

Today, arbitrations in Switzerland are usually tailor-made. I think that's very important, I will expand little bit on this afterwards. We have a very large bandwidth of procedures. If they are exclusively civil law parties, then normally aprocedure would be more like a court procedure which I have just discussed: the parties can agree and sometimes do agree, if they come from civil law backgrounds, that the judge does all these activities I have mentioned. If there are civil law and common law parties involved, then the procedure is mostly a mixed one. One would apply the IBA Rules as a guideline. One would have the production of documents, but only in a limited fashion. There would be witness statements, written witness statements, and there would also be some modified sort of cross-examination.

If the parties would exclusively come from common law markets, common lawcountries, there is nothing that would prevent the arbitration tribunal and the parties to shape a procedure which is very much like one that you would face ina common law jurisdiction.

So, where is that all being done? In any Swiss arbitration proceeding, you would normally have, at the beginning, an organisational hearing or a management conference where the parties would come together and would organise the proceedings under the guidance of the arbitration tribunal. They would talk about such things like the number of submissions that are to be made. The normal number is two submissions by each side, but there can be more than that or there can be different ways of doing the submissions. One would discuss whether proceedings should be inquisitorial, the civil law way, or adversarial, in the common law way. One would discuss whether there should be production of documents, and if a Chinese party would, for instance, say, "Well, I don't like that. When we concluded the contract nobody thought that we will end up with document production," that will be a very valid argument for the tribunal not to allow extensive document production even though the other party may request it.

Then it would be discussed whether witness statements should be made, written witness statements, whether the judge should investigate the witnesses. The expert appointments would be discussed, and again, probably already at that stage, the question would be raised whether the arbitration tribunal should ata certain point of time have the right or the authority or at least the initiative to go into settlement negotiations.

Contrary to the Court of Arbitration for Sport, in a Swiss arbitration, if it's done in a civil law style, there would not be a different mediator. It would really be the same arbitration tribunal which leads the proceeding which would act as mediator, based on its preliminary assessment of the case, and if the mediation fails, that would not prevent that arbitral tribunal to continue. So this is avery significant time gain .if you compare it to other systems, particularly the common law, where one would interrupt, if the parties want to talk about settlement, then the judge would interrupt or the tribunal would interrupt the proceeding and send them to a meeting with an outside mediator and they would start a new proceeding, and come back if it's unsuccessful.

Both systems have, of course, their advantages and disadvantages. I just would like to mention you have this bandwidth; you can make your proceedings in a way that fits for you. Such variety, I must say, is normally not available in arbitration jurisdictions with a common law background. They normally do things more or less in the way that they have always been done, and they normally don't know the civil law procedures well enough to offer you that option.

Now, when it comes to locations, arbitrations may be conducted anywhere in Switzerland. I'm talking about the seat. The most commonly used locations,seats, are Geneva, which is French-speaking; Zurich, which is German-speaking; and Lugano, which is Italian-speaking. It has been said before that it is important, even if the seat is in one of these three cities or in another city in Switzerland -- it doesn't mean that the hearings need to take place always in Switzerland. They can take place anywhere that is convenient. So in a proceeding which is seated in either of the cities in Switzerland, you could have your hearings in Hong Kong, which is easily reachable by everyone, and still you would have the civil law regime.

The laws and procedural rules in all these areas are the same. There is no difference between the three locations, except that as a matter of fact, Romanic countries often prefer Geneva; Anglo-Saxon countries often prefer Zurich; and Italian countries often prefer Lugano. But that's by no means an iron rule.

Now, why would you come to Switzerland? I'll show you a world map, the markets where China is active, the outbound markets, and if you look at the map, you will understand. Switzerland is in the middle of these markets, because the green dots basically are the markets where China has its outbound interest. And you can see that North America, South America, Africa and Russia are all relatively close to China, and if China would have an arbitration in Switzerland, that would be a convenient location for all these procedures.

Again, the procedure can be in English, can be in Chinese. Probably that's difficult to sell to another side if it's not a Chinese party, but you're not stuck with the language. You can choose whatever you want to and the tribunal will workwith the language.

Okay. There are other arbitration fora available, of course, and they are listed here. What I would like you to retain is that you have broad bandwidth of possibilities in Switzerland and you have the whole panoply of civil law instruments in addition to the common law instruments, and an efficient proceedings Swiss-style is composed of all these elements we have. It has already been mentioned. So the procedure is quick and efficient.

Switzerland, it has been said, has been a trusted partner of China for a long time. It's international. It's politically stable. It's neutral. It's independent. It has an extremely low corruption rate. It's multilingual. And it's not far away these days, because in about 10 hours, you are there if you have a direct flight. Thank you. I hope to see you in Switzerland again.

华南国际经济贸易仲裁委员会（深圳国际仲裁院）办公地址：深圳市福田区彩田路5015号中银大厦B座19层

电话：0755-83501700

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示范仲裁条款一：

"凡因本合同引起的或与本合同有关的任何争议，均应提交华南国际经济贸易仲裁委员会仲裁。"

示范仲裁条款二：

"凡因本合同引起的或与本合同有关的任何争议，均应提交深圳国际仲裁院仲裁。"

华南国仲　独立、公正、创新