Karin Graf and Brigitte Umbach-Spahn in: ASA Bulletin, Volume 36, No. 4, 2018
When can a foreign arbitral award be enforced in Swiss insolvency proceedings against the insolvent defendant? This question arises because according to the provisions of the NYC, enforcement may be refused if the subject matter of the dispute is non-arbitrable. The arbitrability of insolvency-related claims is contentious under Swiss law and actions to contest a schedule of claims are portrayed as being non-arbitrable. In the Swissair case, the Supreme Court has now rendered various decisions dealing with the significance of foreign civil judgements for the assessment of claims and related schedules of claims proceedings in Swiss insolvency proceedings. The principles thereby developed can be applied to arbitration and lead to the identification of four different scenarios. These scenarios are discussed in the article.