In a judgment of November 5, 2018, the Commercial Court dismissed A`s appeal and referred the parties to arbitration under Article II, paragraph 3, of the New York Convention. The Commercial Court found that it was not necessary to decide whether B S.A. was an original part of the distribution contract. Given B S.A.`s performance under the multi-year agreement, its consent to be bound by the distribution agreement with the arbitration agreement could be implied. B S.A., however, would not have met the formal requirements of Article II, paragraph 2, of the New York Agreement, since it had not signed the distribution agreement. However, since A had accepted B.A.`s performance in the distribution contract and had even been actively involved in it, A`s assertion that the request for formation of the New York Agreement would not have been respected seemed contradictory and contrary to the principle of good faith and, as such, not protected by law. B.b.a The treaty is governed by Swiss law. The subjective viability of the compromise clause must therefore be considered on the basis of Article 178, paragraph 2 of the PILA5. In determining the applicable law on the basis of this article, it cannot be referred only to the law chosen by the parties, i.e. Swiss law. The guarantee must be considered as such, as this is the nature and consequences of a third-party commitment, even if that analysis must take into account the context of treaty relations. The parties disagree on whether the guarantee is governed by Swiss or Italian law.
It does not matter because the application of one of the two statutes results in the same result. The parties rightly believe that the Bundesgerichtshof`s decision in 4P.126/2001 of 18 December 2001 should be referred to to determine whether a surety is bound by the compromise clause introduced in the main contract. Under this decision, a guarantee, even a multiple guarantee or a contract with the charge of a third party is not sufficient to bear this consequence.6 That would be the case with a commitment. As a result, the commitment Z.______ must be marked by both Swiss and Italian legislation. This clarification is welcome. A consultation with the 2016 CNUDCI Guide to the New York Convention (p. 53 s.) shows that a number of states have a stricter policy in this regard, i.e. it is not possible to extend it under Article II, paragraph 2, of the New York Convention, for a third party that has not signed the corresponding arbitration agreement.