Conflicts Of Interest And Balance In Revision In The Light Of The Newly Revised Swiss Private International Law Act

Revision is one of the procedures for judicial review of arbitration,whereby a court remands a seriously flawed and final arbitral award to the original tribunal for reconsideration.The system of revision is a "balancing lever" between arbitral autonomy and judicial review,giving the original arbitral tribunal a chance to remedy itself and interfering less with arbitral autonomy than the setting aside or non-enforcement of an arbitral award,which directly negates the validity and enforceability of the arbitral award.In addition,the revision system helps to safeguard procedural economy and saves the parties to the arbitration from having to negotiate and agree on a new means of dispute resolution,and from having to reconstitute the tribunal.The Swiss system of revision in international arbitration has undergone a transition from jurisprudence to statutory law.The Swiss Federal Supreme Tribunal first applied the system of reopening in litigation proceedings to international commercial arbitration in its 1992 jurisprudence.The newly amended Swiss Private International Law Act in 2021 has filled the legislative gap by adding a new clause on revision in international arbitration.The provisions on revision have largely continued the approach taken in the case law,and there are some innovations in the grounds for revision and in the exclusion agreement.In view of the specificity of the grounds for revision and the strict standard of review,the success rate of parties applying for revision in judicial practice is low,and in judicial practice the Federal Tribunal has only granted revision applications in four cases between 1992 and 2020.The system of revision is a derivative of the arbitration process and reflects the inherent conflict of interest within the arbitration process,which is reflected in the conflict of interest between the parties to the arbitration and between the parties to the arbitration and the arbitrators.At the same time,the balance between the conflicting interests of fairness and efficiency in arbitration cannot be achieved without external oversight.The essence of the revision system is a system of judicial review of arbitration,which is essentially a breakthrough in the principle of "finality of arbitration" and reflects a conflict of interest in the externalities of the arbitration process,specifically in the expansion and limitation of the scope of judicial review.Traditionally,conflicts of interest have been balanced by a standard of review of procedural matters.With the development of party autonomy in arbitration,countries have begun to explore the use of party autonomy as a means of balancing the conflicting values of fairness and efficiency in arbitration,and to impose necessary limits on party autonomy based on public order.The Swiss system of international arbitration revision balances the conflicting interests by initiating revision proceedings and excluding revision agreements.In relation to the initiation of revision,Switzerland adopts the traditional conflict of interest balancing approach by limiting the cause of action for revision to major procedural matters and by applying the principle of limited review to the standard of judicial review.With regard to agreements to exclude revision,Switzerland reflects a balanced approach oriented towards party autonomy,whereby parties may agree to exclude judicial review of revision,with the necessary limitations on party autonomy based on the obligation of judicial supervision by the State of the place of arbitration under the European Convention on Human Rights and the principle of protection of the weakness.Thus,although the Swiss Parliament’s draft legislation emphasizes the need to further strengthen respect for party autonomy in international arbitration,the design of the regime for revision is still conservative in terms of the limits of party autonomy.The Swiss legislator did not adopt a completely party autonomy-oriented approach to the scope of judicial review.In future amendments and judicial practice,Switzerland may further enhance the function of party autonomy in balancing the conflicting values of fairness and efficiency in arbitration by allowing the parties to expand the scope of judicial review of revision by agreement.Although China’s arbitration legislation deals with the revision system,it treats it as an optional procedure attached to the procedure for setting aside the award.The lack of legislation,ambiguous concepts and procedural obstacles have led to the low usage of the revision procedure in foreign-related arbitration in China.In view of the legislative trend,China’s arbitration system may further guarantee party autonomy and increase the usage rate of the revision system.China may refer to the Swiss practice of making revision a separately applicable judicial remedy,obalancing the conflicting interests of arbitration autonomy and judicial review,and raising the standard of the subject matter of the application on judicial review.