Is Switzerland a good seat for foreign antitrust claims?

Lawyers at Froriep argue here that it is the case. They list the reasons as follows:

  • Antitrust claims are fully-arbitrable under Swiss law (at least when raised defensively, which is generally the case);
  • Switzerland has taken a pro-arbitration stance on the interpretation of arbitration clauses (hence making it likely that antitrust claims will be seen as falling with the scope of such clauses);
  • The Swiss Supreme Court has found that the non-application or incorrect application of a foreign antitrust statute (in that case, EU competition law) does not constitute a breach of Swiss public policy (i.e. Eco-Swiss does not apply);
  • The standard of review applied by the Swiss Supreme Court to petitions for setting aside arbitral awards is limited in scope;
  • Treble/punitive damages are available (which is rarely the case in other continental jurisdictions); and
  • As Switzerland is not part of the EU, the decisions of Swiss arbitral tribunals are not subject to the review of the EU courts and the competition authorities.

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