170 NEWSLETTER 2021 (2) Arbitration proceedings are subject to Part 3 of the Civil Procedure Code; the provisions of Chapter 12 of the Federal Law dated 18 December 1987 on Private International Law do not apply. (3) The articles of association may regulate the procedure, in particular through referral to arbitration rules. They ensure that persons who may be directly affected by the legal effects of the arbitration award are informed about the initiation and conclusion of the proceedings and may participate in the constitution of the arbitral tribunal and in the proceedings as interveners.” In addition, the amendment made to art. 704 of the Swiss Code of Obligations requires a general assembly resolution taken with at least two-thirds of the votes cast and the majority of the nominal values of the votes cast in order to add an arbitration clause to the articles of association. According to Swiss legal scholars, this new regulation provides a non-contractual basis for the arbitration clause. The non-contractual, corporate character of the articles of association, in which the arbitration clause will be included, is set forth by the provision.6 Pursuant to this provision, the arbitral tribunal shall be seated in Switzerland and the provisions of the Swiss Civil Procedure Code shall be applied to the arbitration proceedings initiated based on the arbitration clause in the articles of association. The arbitration clause included in the articles of association shall be registered and announced like other provisions of the articles of association. However, the arbitration clause is not listed among the provisions benefiting from the positive (informative) function of the registry in the Swiss Code of Obligations. The importance of registering the arbitration clause is that it provides notice to new shareholders that they are subject to the arbitration clause. 6 Allemann, Richard G.: “Setting the Ground for Corporate Arbitration in Switzerland: Swiss Parliament Approves New Rules for Arbitration of Corporate Law Disputes”, Kluwer Arbitration Blog, August 17, 2020.
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