NEWSLETTER-2017

182 NEWSLETTER 2017 cretionary powers to appoint an independent expert and, therefore, it is possible not to appoint an expert if the arbitral tribunal does not consider the appointment to be necessary. The party whose request of appointment of an independent expert had been rejected filed a set-aside action under Article 190(2)(d) of the Federal Act on Private International Law, which sets forth that the arbitral award may be set aside where the principle of equal treatment of the parties, or their right to be heard in an adversary procedure, has not been observed 2 . Conditions set forth by the Swiss Federal Court to be considered in the Appointment of an Independent Expert In its decision, the Swiss Federal Court conducted a thorough analysis of the conditions to be taken into consideration in the ap- pointment of an expert, by referring to its jurisprudence, as well as the legal literature 3 . These conditions are further elaborated upon, below. The first condition cited by the Federal Court is a clear request of appointment of independent expert by the relevant party. Secondly, the request should have been made in accordance with the form require- ments and time frame agreed upon during the arbitral proceedings, and the requesting party should have agreed to pay the relevant costs. Finally, the request should include the necessary documents that are capable of proving the facts that render the appointment of an expert necessary. This would be the case when the determination of the facts requires specific technical knowledge, and the arbitral tribunal lacks this specific knowledge. This requirement of submission of documents, along with the request, is considered as a new aspect concerning the arbitral proceed- ings seated in Switzerland 4 . Considering the decision of the Federal 2 An English translation of the Federal Act on Private International Law may be accessed under http://www.andreasbucher-law.ch/images/stories/pil_act_1987_ as_from_1_1_2017.pdf. 3 The Supreme Court referred to an article by Jean-Francois Poudret, titled Exper- tise et droit d’être entendu dans l’arbitrage international , published in Etudes de droit international en l’honneur de Pierre Lalive, p. 607-624. 4 Nathalie Voser, Benjamin Gottlieb, Swiss Supreme Court Rejects Challenge and Reiterates Principles of Rights to a Tribunal Appointed Expert , p. 4. Source: