瑞士最高院：仲裁裁决并不违反公共利益原则

更新时间：2018-04-12 11:18:55  张振安 临时仲裁ADA 编辑：lianluobu  点击次数：1592次

英语词汇

1. slot machines: 老虎机

2. The fair and equitable treatment(“FET”):公平公正待遇

3. Zlotys：兹罗提（波兰货币）

4. Expropriation：征收

5. Swiss Federal Supreme Court (“FSC”)：瑞士联邦最高法院

6. ordre public：公共秩序

7. Public Interest：公共利益

8. fiscal sovereignty：财政主权

9. pacta sunt servanda：条约必须遵守

案件背景

某X国在1980年代进行市场经济改革，并采取措施限制博彩业（老虎机），2009年禁止投入新老虎机，原有老虎机在许可到期后逐渐淘汰，同时提高博彩业的税率。

Y国（该国与X国有双边投资协定BIT）的三个公司受到X国政策影响，由于该行业的税率的提高而增加了财务压力，不得不提起报废大部分老虎机，并于2015年退出市场。

仲裁结果

2014年，与X国政府协商无果之后，提起仲裁，认为X国违反了公平公正待遇原则（FET）。

2017年2月16日，三人仲裁庭作出裁决认定X国违反了 BIT规定的公平公正待遇原则，赔偿3700万兹罗提（波兰货币）。但是驳回了申请人主张的非法征收的指控。

撤销仲裁裁决之诉

X国（上诉人）的观点

X国向瑞士最高法院提起撤销之诉，主张裁决违反了公共秩序，理由是：

（1）限制国家的财政主权；

（2）无视该国为了公共利益而与博彩业的危险作斗争；

（3）未能认同X合理的方法来管制低风险赌博。

法院对裁决的有限审查原则

即使裁决存在明显错误或者裁决明显违反法律，法院也不会自发纠错，法院仅根据190 (2)PILA法律规定进行有限审查。.

违反公共秩序的认定标准

最高法院进一步阐明，只有在非常限情况下才能认定违反公共秩序。具体来说，这种违法行为只能在裁决没有考虑到基本法律原则时才能被认定，该裁定与基本和普遍接受的价值体系是不可调和的，瑞士的普遍观点认为：这一制度应该是任何法律制度的基础。这些原则包括条约必须遵守的原则、真诚行动的义务、禁止滥用法律、禁止无偿征收、禁止歧视以及保护未成年人和弱势成年人。此外，只有在其结果(而不仅仅是推理)与上述公共秩序不相容的裁决中才能发现违反公共秩序的行为。

法院驳回上诉（撤销裁决之诉）的理由

法院认为首先要区分仲裁的限制：是投资方诉东道国的国际投资仲裁还是一般商事仲裁。

根据瑞士 190 (2) (e) PILA法律规定,对裁决的审查仅限于有限的情况，但是无权审查“对BIT条约的错误解释”即使是武断（任意：arbitrary）的解释。

法院最终拒绝审查仲裁庭就关于大幅增加老虎机的税收违反了双边投资条约下的FET条款的认定。认为上诉人未能证实仲裁庭的裁决如何违反最高法院根据Pila190(2)(E)对国际仲裁裁决进行审查时所界定的重大公共秩序原则，以此作为其拒绝的理由。上诉人没有提及公共秩序的相关概念，而是提到了另一种更为宽泛的概念，即公共秩序的教科书定义为“为公共利益颁布的所有法律规则的总和”。 因此，最高法院无法审查上诉人批评仲裁裁决如何违反公共秩序，驳回上诉。

简要评论

本案件，法院确定了一个原则严格按照法律规定审查仲裁裁决，首先明确了仲裁裁决的性质是属于投资者诉东道国的国际投资仲裁，法院无权审查BIT的有关条款的解释问题，同时就这才裁决认定东道国违反PET的事实性问题，法院无权进行审查。

【英文原文】

Les Jeux Sont Faits: Swiss Supreme Court Upholds Investment Treaty Award against Public Policy Challenge in a Gambling Case

Georg von Segesser (von Segesser Law Offices)/March 31, 2018

The Swiss Federal Supreme Court, in a rare appeal against an award in a bilateral investment treaty arbitration, confirmed its statutory restraint in reviewing arbitral awards pursuant to article 190 of the Private International Law Act (“PILA”) and rejected the host state’s request to set aside the award for violating substantive public policy. (Case 4A_157/2017, 14 December 2017)

Facts of the Case

Following the development of a market economy in the 1980s, State X undertook different measures to regulate gambling, including low-stakes gambling with slot machines. The relevant regulation was strengthened over the years, with concurrent increases in taxation. In 2009, following a scandal involving members of X’s government, the regulations were again increased. With this change, all new slot machines were prohibited, with existing slot machines being allowed to remain in operation until the expiration date of their current authorization. This change too was accompanied by an increase in the taxation of slot machines.

Since 2004, three companies organized according to the laws of the State Y (which had entered into a bilateral investment treaty (“BIT”) with State X) were active in X through participations in local companies operating slot machine. While these companies continued to operate their existing slot machines, the increased regulatory and fiscal burden led them to retire most machines and abandon the market entirely in 2015.

In 2014, A, B and C (the State Y companies), after failed conciliation attempts, submitted a request for arbitration against X. They claimed damages, arguing that they were victims of a violation of the fair and equitable treatment (“FET”) clause in the BIT between X and Y.

A three-member arbitral tribunal was constituted with seat in Geneva, which handed down its final award on 16 February 2017. The arbitral tribunal found that X had violated the BIT’s FET clause and ordered it to pay 37M zlotys, with interest. While the Arbitral Tribunal did not find that the companies had been victims of unlawful expropriation, it held that the strong increase in taxation constituted a violation of the FET standard, which warranted the payment of damages to the Claimants.

State X appealed to the Swiss Federal Supreme Court (“FSC”) for the decision to be set aside.

The Supreme Court’s Decision

In line with its constant practice, the FSC based its assessment on the facts of the case as determined by the arbitral tribunal. It reiterated its position that it could not correct or complete the facts on its own initiative even if they were manifestly incorrect or had been determined in a manner that was incompatible with the law; the sole exception being the grounds for review explicitly and exhaustively enumerated in article 190 (2) PILA.

With regard to the violation of the substantive ordre public (public policy), the Supreme Court went on to elaborate that such a violation could only be found under a very restrictive set of circumstances. Specifically, such a violation could only be seen in a decision that failed to consider fundamental legal principles and, in doing so, became irreconcilable with the essential and generally accepted system of values, which – from the point of view predominant in Switzerland – should underlie any legal system. Such principles are, inter alia, the principle pacta sunt servanda, the duty to act in good faith, the prohibition of abuse of law, the prohibition of expropriation without compensation, the prohibition of discrimination and the protection of minors and vulnerable adults. Moreover, a violation of the substantial ordre public could only be found in a decision whose outcome (rather than just its reasoning) was incompatible with the aforementioned ordre public.

In the present case, the appellant argued that the decision violated the substantial ordre public on three different counts, namely by restricting X’s fiscal sovereignty, by disregarding that it acted in the public interest of fighting the dangers of gambling, and by failing to sanction X’s reasoned approach in regulating low-stakes gambling.

In rejecting the appeal, the SFC recalled that its power to review decisions under appeal depended on the arguments invoked against the appealed decision. It then went on to clarify that this differentiated approach was the same whether the appealed decision was rendered in an investment treaty arbitration against a host state or any other type of international arbitration.

It further recalled that, in reviewing jurisdictional decisions pursuant to article 190 (2) (b) PILA, it examined questions of law freely, including any preliminary questions that were determining for jurisdiction. By contrast, when called to examine a violation of the substantial ordre public under article 190 (2) (e) PILA, its review was strictly limited and, consequently, it could not review an erroneous interpretation of a clause in the BIT, even to the point of such interpretation being arbitrary, if it did not fulfill the conditions of article 190 (2) (e) PILA as established in its long-standing jurisprudence.

The FSC ultimately refused to examine whether the arbitral tribunal was right to find that the substantial increase in taxation of the slot machines violated the FET clause under the BIT. It justified its refusal by pointing out that the appellant failed to substantiate how the Arbitral Tribunal’s findings violated the substantial ordre public as defined in the context of a Supreme Court review of an international arbitral award according to PILA 190 (2) (e). Instead of referring to the relevant notion of ordre public, the appellant had referred to a different, vastly more expansive notion, namely a textbook definition of ordre public as the “sum of all legal rules issued in the interest of the community”. As a result, the Supreme Court could not examine how the appellant’s criticism of the appealed decision constituted a violation of the substantial ordre public. Consequently, the appeal was rejected.