COUNTERCLAIM AND SET-OFF IN INTERNATIONAL COMMERCIAL ARBITRATION
COUNTERCLAIM AND SET-OFF IN INTERNATIONAL COMMERCIAL ARBITRATION

Summary/Abstract: Until recently, admissibility of counterclaims before international commercial arbitrations has been treated in accordance with a relatively simple formula – one had to ascertain the objective scope of the arbitration agreement. With regard to set off defense, however, admissibility threshold was less clear and mostly dependent on the relation between the main claim and the claim used for purpose of set-off. The newly promulgated Swiss Arbitration Rules have, for the first time, enabled a potential broadening of arbitral jurisdiction over set-off claims, enabling Swiss tribunals to adjudicate even those set-offs already subject to another arbitration clause or forum selection clause. This might lead to a potentially dangerous situation, where such attraction of jurisdiction might lead to a conflict with another tribunal or court expressly designated as competent with regard to relations giving rise to a set-off. This triggers later dilemmas with regard to the reach of decisions on set-off and the possibility that the tribunal applies the lis pendens rules in order to avoid conflicting decisions.

• Details
• Contents