## Facts

- W, a Panamanian company controlled by nationals of State K, entered into a contract with F and U, companies incorporated in State Y.
- Under the contract, W was to assist F and U in obtaining orders from State K for deliveries of M‑84 tanks from the State U defense industry.
- In return for W’s services, F agreed to pay fees, supported by a guarantee from U.
- The fee agreement contained an arbitration clause providing for arbitration under the Rules of the International Chamber of Commerce (ICC).
- F and the Minister of Defense of State K later entered into an agreement for delivery of a number of M‑84 tanks for a set price.
- F then terminated the fee agreement with W, asserting that the agreement was contrary to mandatory laws of State K and State Y.
- F and the Minister of Defense of State K also entered into a new agreement concerning construction of training facilities for M‑84 tanks at a set price.
- Relying on the agreements between F and the Minister of Defense of State K, W sought payment of its fees from F; F refused to pay.
- W commenced ICC arbitration seeking amounts due under the fee agreement; in its briefs, W pursued payment only from F and compensatory damages from U.
- The arbitral tribunal rendered an award in W’s favor.
- F and U challenged the award in the Swiss courts under Article 190 of the Swiss Law on Private International Law (PILA).
- U argued for annulment on the basis that the tribunal exceeded its authority by accepting a modification of W’s claim in a manner inconsistent with the ICC Rules.
- F and U also argued that the fee agreement violated mandatory provisions of the laws of State K and required F to pay bribes, allegedly conflicting with Swiss law.

## Issues

1. Whether, under Article 190 PILA, an ICC arbitral tribunal exceeds its authority by allowing a change in the way the claimant seeks relief during the arbitration.
2. Whether an arbitral award based on a fee agreement connected to alleged bribery or other mandatory-law violations must be set aside as incompatible with Swiss law and public policy.

## Decision

- The Swiss Federal Tribunal rejected the challenge under Article 190 PILA and left the arbitral award in place.
- On the “excess of authority” ground, the court treated the dispute as turning on whether the tribunal decided beyond the scope of the parties’ submissions; it found no basis to annul the award merely because the claim was presented differently during the written phase of the arbitration.
- On the illegality/public policy arguments, the court declined to set aside the award on the record presented, holding that the asserted mandatory-law and bribery objections did not justify annulment under the limited review permitted by Article 190 PILA.

## Legal Principles

- Article 190 PILA provides limited, specific grounds for setting aside an international arbitral award seated in Switzerland; the Federal Tribunal does not conduct a full review of the merits.
- A tribunal “exceeds its authority” (ultra/extra petita) only if it grants relief not requested, fails to decide a claim submitted, or otherwise decides matters outside the parties’ submissions; case management and the handling of changes in pleadings generally do not, by themselves, establish excess of authority.
- Allegations that an agreement involves bribery or violates mandatory rules may be raised as a public policy objection, but annulment requires a showing that enforcement of the award would be incompatible with fundamental Swiss legal order, not merely that foreign mandatory rules were implicated.
- The party seeking annulment bears the burden of showing that a ground under Article 190 PILA is met, based on the arbitral record and the narrow scope of judicial review.

## Conclusion

In this Swiss Federal Tribunal decision reviewing an ICC award arising from a tank‑procurement fee arrangement, the court applied the restricted annulment framework of Article 190 PILA and declined to set aside the award based on arguments that the tribunal improperly accepted a change in the claimant’s submissions and that the fee agreement was tainted by mandatory-law and bribery allegations.


Judgment of 30 December 1994, 13 ASA Bull. 217 (1995)