Swiss Supreme Court: No Easy Route to Reopen Arbitral Awards

When a state invokes fresh criminal convictions to reopen an international arbitral award, how far will Swiss courts bend? Not far at all, according to the Swiss Federal Supreme Court. In a closely watched decision, the Court reaffirmed the exceptionally high threshold for revising Swiss-seated arbitral awards — even where national criminal courts have since confirmed the very corruption allegations that the tribunal originally dismissed. The ruling sharpens the contours of post-award remedies under Swiss arbitration law and sends a powerful signal to international parties, including those from Türkiye: finality means finality.

A Firm Line on Finality

The case centres on one of the most high-profile energy disputes in recent European history. In Decision 4A_69/2022, the Swiss Supreme Court dismissed Croatia’s bid to revise an UNCITRAL arbitral award seated in Geneva that had rejected Croatia’s claims that Hungary’s MOL acquired control of Croatian energy company INA through bribery. Croatia pinned its revision application on a development that came after the award: the criminal conviction of MOL’s then-CEO and Croatia’s former Prime Minister for corruption in connection with the very transactions at issue. It sought to reopen the case under Article 190a of Switzerland’s Private International Law Act (“PILA”).

The Court’s answer was unequivocal: criminal convictions handed down by national courts do not, by themselves, unravel an arbitral award. Post-award revision remains available only through an exceptionally narrow gateway — and Croatia failed to pass through it.

Revision Under Article 190a PILA: A Narrow Door — and Closing Fast

Since its revision in 2021, Article 190a PILA permits a party to seek revision of an international arbitral award on only two grounds:

1. New material evidence that existed but was undiscoverable at the time of the award; or
2. Proof that the award was influenced by a crime.

Croatia invoked both grounds — and fell short on each. The Supreme Court’s reasoning was methodical:

• New facts must pre-date the award. Criminal convictions handed down five years after the award could not qualify as newly discovered evidence. The Court emphasised that the relevant evidence — witness testimony given during criminal proceedings — had been available since 2019 at the latest.
• The 90-day clock is unforgiving. Parties must file within 90 days of discovering a ground for revision. Any delay beyond that window — regardless of the reason — renders the request inadmissible.
• Waiver clauses carry real teeth. Broadly worded appeal waivers in arbitration agreements — such as the clause in this case stating that awards shall be “final and conclusive” with “no appeal to any court” — can exclude most post-award remedies, including revision based on new evidence.

The sole exception that parties cannot waive is revision for criminal influence under Article 190a(1)(b) PILA. But even here, the Court set a demanding standard: the applicant must demonstrate a direct causal link between the crime and the outcome of the arbitration. Overlapping facts, contradictory findings between criminal and arbitral proceedings, or subsequent convictions alone are not enough. Crucially, the Court noted that the arbitral tribunal was fully aware of the parallel criminal proceedings yet chose to assess the evidence independently — and two separate arbitral tribunals (UNCITRAL and ICSID) reached the same conclusion: the corruption allegations were not proven.

What This Means in Practice

• Allegations of bribery or fraud will not suffice on their own. Parties must produce clear, direct evidence demonstrating that the crime influenced the award itself — national court convictions, standing alone, will not do.
• There are no second chances for evidence that could have been introduced earlier. Swiss courts will treat late submissions as procedurally fatal.
• Draft waiver clauses with eyes wide open. A broad “no appeal” clause may foreclose not only ordinary challenges but also extraordinary remedies like revision — with only the narrow criminal-influence exception surviving.
• Front-load your evidence strategy. Evidence emerging from parallel criminal proceedings should be gathered and submitted during the arbitration itself. Waiting for a criminal court to rule before presenting key evidence is a high-risk gamble that this decision shows will not pay off.
• Arbitral tribunals chart their own course. Swiss arbitral tribunals and the Supreme Court are not bound by national criminal court judgments — even where those judgments address the very same facts and the very same parties.

Conclusion

This decision cements Switzerland’s reputation as one of the world’s most finality-focused arbitration seats. For parties who value predictability, legal closure, and protection against tactical post-award manoeuvres, the message could not be clearer: once a Swiss-seated award is rendered, reopening it will be an uphill battle of the steepest kind.

For parties in cross-border disputes — particularly those where corruption or bribery allegations may surface during or after the proceedings — the practical lesson is straightforward: invest in your evidence strategy during the arbitration, draft your waiver clauses deliberately, and do not assume that a favourable criminal court verdict down the line will rewrite an unfavourable arbitral outcome. In the Swiss system, the award has the last word.

For tailored guidance on arbitration strategy, waiver clause drafting, or other alternative dispute resolution considerations, reach out to the CMS Türkiye Dispute Resolution team: Dr. Döne Yalçın or Erdinç Dalar.