## Facts

- F. Anstalt (Liechtenstein) and T. Company Ltd. (Panama) signed an agreement on 18 August 1969 to found a Liechtenstein company (F. Co. Ltd.) and regulate their relationship in that venture, including board representation.
- The 1969 agreement contained a Swiss-law clause providing that Swiss law would apply.
- The agreement also included an arbitration clause providing for a three-member tribunal: each party would appoint one arbitrator, and the two appointed arbitrators would select a chair.
- The clause (and the parties’ arrangement) contemplated court assistance: if an arbitrator could not be appointed as agreed, either party could request the President of the Commercial Court of Zurich to make the appointment.
- A dispute arose between F. Anstalt and T. Company Ltd. relating to their relationship in the venture.
- Each party appointed an arbitrator, but the two arbitrators could not agree on the third arbitrator (chair).
- A party asked the President of the Commercial Court of Zurich to appoint the third arbitrator, invoking Art. 179(3) of the Swiss Private International Law Act (IPRG/PILA) and the appointment mechanism in the arbitration clause.
- The President of the Commercial Court refused to appoint, taking the view that the dispute was not covered by the arbitration clause.
- The Zurich Court of Cassation (Kassationsgericht) rejected the challenge to that refusal.
- F. Anstalt filed a constitutional complaint (staatsrechtliche Beschwerde) with the Swiss Federal Supreme Court, alleging violations of Art. 4 BV (protection against arbitrariness/equality) and Art. 58 BV (lawful judge), and arguing that Art. 179(3) PILA had been wrongly applied.

## Issues

1. Whether the decision under Art. 179(3) PILA by the President of the Commercial Court of Zurich (and its review by the Zurich Court of Cassation) involves a federal procedural rule whose violation may be raised before the Swiss Federal Supreme Court.
2. What the appointing authority may examine at the arbitrator-appointment stage under Art. 179(3) PILA—specifically, whether it may decide, beyond a preliminary check, contested questions about the arbitration agreement’s scope.
3. Whether the refusal to appoint an arbitrator, as affirmed by the Zurich Court of Cassation, amounted to unconstitutional arbitrariness (Art. 4 BV) or violated the guarantee of the lawful judge (Art. 58 BV) by blocking formation of the arbitral tribunal.

## Decision

- The Swiss Federal Supreme Court treated Art. 179(3) PILA as a federal procedural provision; in principle, an alleged violation of that provision can be brought before the Federal Supreme Court (subject to ordinary procedural limits).
- The Court stated that the state court’s role when asked to appoint an arbitrator under Art. 179(3) PILA is auxiliary and should not become a full determination of contested matters that normally belong to the arbitral tribunal.
- Applying constitutional standards applicable to a staatsrechtliche Beschwerde, the Court found no unconstitutional arbitrariness and no breach of the lawful-judge guarantee in the Zurich authorities’ handling of the appointment request.
- The constitutional complaint was dismissed, and the Zurich decisions remained in force.

## Legal Principles

- Art. 179(3) PILA is a federal procedural norm; an alleged breach may, in principle, be reviewed by the Swiss Federal Supreme Court through the available remedies and subject to admissibility limits.
- The appointing authority’s task under Art. 179(3) PILA is supportive: it helps constitute the arbitral tribunal when the agreed appointment method fails, rather than deciding the dispute’s merits.
- At the appointment stage, the state court should not conduct a broad review of disputed questions about interpretation, validity, or performance of the parties’ broader contractual arrangements; such matters are generally for the arbitral tribunal to decide first (competence-competence).
- Constitutional review in this setting is narrow: the Federal Supreme Court intervenes only where the cantonal approach is constitutionally untenable, including under the arbitrariness standard, or where the lawful-judge guarantee is violated.
- The lawful-judge guarantee protects access to the tribunal that the law provides, but it does not require the appointing authority to substitute itself for the arbitral tribunal by finally deciding contested jurisdictional questions at the appointment step.

## Conclusion

BGE 118 Ia 20 confirms that Art. 179(3) PILA functions as a federal procedural rule governing court assistance in constituting arbitral tribunals and is, in principle, reviewable before the Swiss Federal Supreme Court; however, the Court rejected F. Anstalt’s constitutional complaint and left Zurich’s refusal to appoint the third arbitrator in place, emphasizing the auxiliary nature of the appointing authority’s role and finding no constitutional violation under Arts. 4 or 58 BV.


Anstalt F. v. T. Co. Ltd., BGE 118 Ia 20 (Switz. 1992).