Lenz & Staehelin successfully represented a Lebanese-owned telecommunications operator as defendant in proceedings before the Swiss Federal Supreme Court in which the Republic of South Sudan was seeking to set aside an arbitral award rendered in a Geneva-seated ICC arbitration. The sole arbitrator had found in a decision dated 10 November 2022 that he had jurisdiction over the dispute and South Sudan was bound by the arbitration clause in the relevant licence documents despite not being a signatory to those documents.
In a decision 4A_575/2022 dated 7 August 2023, notified to the Parties with reasons on 24 August 2023, the Supreme Court upheld the award and dismissed South Sudan’s application.
By way of background, after having established the validity of the licence documents, the award on jurisdiction was based on two grounds. The sole arbitrator held, firstly, that the licence documents had been transferred to South Sudan by way of succession and, secondly, that the conduct of South Sudan gave rise to an appearance of intent to be bound by the licence documents. South Sudan challenged this decision arguing that there was no valid arbitration clause and that the sole arbitrator had breached its right to be heard.
The Supreme Court agreed with the operator’s view that the sole arbitrator had positively established the validity of the licence documents containing the arbitration clause and that the obligations thereunder had been transferred to South Sudan by way of an international treaty between the Republic of the Sudan and the Republic of South Sudan regarding the allocation of assets and liabilities. It also found that there was no violation of South Sudan’s right to be heard.
South Sudan had to bear all costs of the proceedings and was ordered to pay the defendant’s legal costs.
The Lenz & Staehelin team included partner Xavier Favre-Bulle and counsel Hanno Wehland.
