NEWSLETTER-2017

183 ARBITRATION LAW Court, it would be advisable to submit the necessary documents, along with the request of appointment of an independent expert, instead of submitting them subsequent to the instruction of the expert 5 . Finally, the fact that the requesting party is aiming to establish proof should be relevant to the tribunal’s final decision, which requires the set-aside judge to examine whether the administration of the evidence would have led to a different award. At this point, the Swiss Federal Court clarifies that the set-aside judge may only conduct a limited review of assessment of evidence, within the scope of the right to be heard, which should not lead to a review of the merits of the case. Accordingly, a potential infringement of the right to be heard should also have an impact on the tribunal’s decision, which would lead the tribunal to decide differently, had the independent expert been appointed. This requirement imposed by the Federal Court aims to exclude the set-aside actions based on infringements of the right to be heard that do not have an influence on the arbitral tribunal’s decision. Conclusion The decision of the Swiss Federal Court on the appointment of an independent expert by the arbitral tribunal includes very important determinations in terms of the right to be heard, as well as the condi- tions that should be fulfilled in the request of expert appointment by the tribunal. Accordingly, there are certain conditions that need to be fulfilled in order to duly request an independent expert. Considering the close connection between the appointment of experts and the right to be heard, the Swiss Federal Court reviewed these conditions quite thoroughly, in order not to give rise to set-aside decisions based on purely formal violations of the right to be heard. It is quite important that the request of expert appointment should include supporting doc- uments, which may be considered as a new aspect under Swiss law. Another significant finding of the Federal Court is that the right to be heard is infringed upon when the refusal of appointment of the expert would have an impact on the final decision of the arbitral tribunal. http://www.swlegal.ch/getdoc/ae0ff02c-56c5-4c24-8299-52c35f585945/2017_ Nathalie-Voser_Benjamin-Gottlieb_Swiss-Su-(4).aspx (“Voser-Gottlieb”). 5 Voser-Gottlieb, p. 4.