The claimant, a Singapore-incorporated company, was created during the restructuring of an Australian mining group. It acquired an Australian company from its New Zealand parent by way of an intra-group share swap.
In 2023, the claimant commenced UNCITRAL arbitration proceedings against Australia under the Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area (“<span class="news-text_medium">AANZFTA</span>”). The Geneva-seated tribunal declined jurisdiction, finding the claimant had not made an investment protected by the treaty.
The claimant brought both a setting-aside application and a parallel revision request before the Swiss Supreme Court.
The Supreme Court upheld the tribunal’s jurisdictional finding. Applying the treaty-interpretation principles in the <span class="news-text_italic-underline">Vienna Convention on the Law of Treaties</span>, it held the AANZFTA requires more than ownership or control of an asset. A covered investment must also involve a contribution by the investor.
The Court considered that requirement supported by the treaty’s references to investments being “established, acquired or expanded”, by its treatment of invested and reinvested returns and by its distinction between making an investment and merely owning or controlling one.
The claimant had been incorporated with SGD 1 in initial capital. Its newly issued shares had no value when the intra-group share swap took place. The Court rejected its argument that receipt of valuable shares in the Australian company was itself a contribution. The contribution had to be assessed from the perspective of the acquiring entity, rather than that of the corporate group as a whole.
Although a qualifying contribution may take different economic forms and need not necessarily involve a capital flow into the host state, the claimant had not proved such a contribution. Its involvement in the Australian company’s management did not remedy that deficiency.
In the parallel revision proceedings, the claimant alleged arbitrator bias. It argued the fees recorded in the award demonstrated the arbitrators could have spent only seconds reviewing each page of the record.
The Court held the request inadmissible. The information about the fees appeared in the award itself. Any bias challenge should therefore have been advanced under Article 190(2)(a) of the <span class="news-text_italic-underline">Swiss Private International Law Act</span> within the 30-day deadline for a setting-aside application. Revision was not available to rectify that omission.
The decisions are the first in which the Swiss Supreme Court has accepted that a contribution requirement may be implied within a treaty’s definition of a protected or covered investment. In <span class="news-text_italic-underline">Case No. 4A_306/2019</span>, the Court declined to infer an active-investment or consideration requirement from the treaty then before it. In <span class="news-text_italic-underline">Case No. 4A_492/2021</span>, it expressly left open whether contribution and risk were inherent features of an ‘investment’ under the <span class="news-text_italic-underline">Energy Charter Treaty</span> (“<span class="news-text_medium">ECT</span>”).
The second decision also confirms the procedural point that revision cannot be used to cure a failure to raise a ground of challenge in a timely setting-aside application.
The ruling illustrates the importance of analysing each investment treaty’s text closely when determining whether an investor has made a protected investment. A corporate restructuring or intra-group transfer which conveys ownership, but involves no contribution by the acquiring entity, may fall outside the protection afforded by the treaty. It also underlines the need to raise identifiable arbitrator-challenge grounds within the applicable set-aside time limit.
<span class="news-text_medium">Cases:</span> <span class="news-text_italic-underline">Cases 4A_531/2025 and 4A_633/2025</span>, Swiss Supreme Court, 15 June 2026.
