## Facts

- A Guernsey seller sold 51% of shares in a Swiss holding company to a Dutch buyer and received a put option for the remaining 49%, exercisable at “fair market value.”
- The seller exercised the put option in April 2001; the parties disagreed on the fair market value of the 49% share block.
- The contract provided for ICC arbitration seated in Geneva.
- The seller initiated arbitration in September 2001 seeking valuation and payment.
- In March 2004, the tribunal issued a partial award favoring the seller, fixing the price and ordering payment.
- After a correction request, the tribunal issued an August 2004 corrective addendum (rectifying award) modifying the operative portion and increasing the buyer’s monetary obligation substantially.
- The buyer filed a second challenge in the Swiss Federal Tribunal against the rectifying award and, in substance, sought renewed review of the March 2004 partial award, invoking grounds corresponding to tribunal composition, due process/equality, and public policy.

## Issues

1. Whether a challenge directed at a rectifying (corrective) arbitral award may also be used to attack the underlying base award.
2. How a “rectifying award” should be defined for purposes of judicial review of Swiss-seated international arbitration awards.
3. Whether the rectification procedure or the rectifying award violated the asserted statutory grounds for setting aside (composition, right to be heard/equality, or public policy).

## Decision

- The Swiss Federal Tribunal held that a challenge to a rectifying award is admissible only as to the rectification; it cannot reopen review of the base award.
- The Court adopted a broad definition of a “rectifying award” as any award issued following a rectification request or ex officio, regardless of the decision taken in that award.
- The buyer’s arguments were inadmissible insofar as they targeted the March 2004 partial award rather than the August 2004 rectification.
- The Court rejected the challenge as to the rectifying award itself and left the rectifying award in force.

## Legal Principles

- In Swiss-seated international arbitration, a rectifying award is any tribunal decision rendered after a rectification request or ex officio, regardless of whether it changes the original disposition.
- A set-aside challenge directed at a rectifying award is limited to alleged defects in the rectification and the rectification procedure; it does not permit a collateral attack on the base award.
- Challenges to a base award must be brought within the statutory time limit running from notification of that base award; rectification proceedings do not create a second opportunity for full review.
- A party must articulate how alleged defects fit within the limited statutory grounds for annulment; generalized assertions that track statutory language without linkage to specific acts or omissions risk inadmissibility.

## Conclusion

The Swiss Federal Tribunal confirmed that post-award rectification does not reopen the merits or extend the time to challenge the original award: review in a second recourse is confined to the corrective act and its legality, while any objections to the base award must be pursued independently and timely.


Buyer v. Seller, 131 BGE III 164 (Switz. 2005)