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Old 27.02.2012, 18:15
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Arbitration

We have a situation with a new house build for which I need some advice.

The house is a renovation and during the work it, along with 18 other properties, were damaged in a serious fire. The date on which the handover was meant to take place was delayed by two months - the developers claiming a force majeure situation. Fair enough.

They then informed us of the new date (end August) and we sold our house planning to move in on that date as we had the new date in writing.

Fast forward to now and they informed us that the house cannot to ready at the end of August but will only be complete at the end of October, BUT if we pay extra - they will ensure completion by end August.

We have lawyers involved and there is a small loophole in the paperwork by which they committed to complete by the end August which means that it may not be legally binding, but the case is something like 70/30 in our favour.

My gut feel is to fight it, but the amount of money that they want to complete is relatively small vs the cost of taking them to court - and even if we win, they will probably find some other reason to delay it (we changed the colour of the paint or the doorknob or something).

So here is my question - is there provision in Switzerland for retrospective arbitration whereby I don't take them to court for a long case but we both sign up for binding arbitration of the case to decide quickly and cheaply whether they are bound by the paperwork. If they are, my case for damages improves, and if they aren't I just have to pay the ransom that they are demanding. If there is - does anybody have any experience or idea of the costs?

(You - like me - may wish to write things like "I'd tell them to stick their house up their ass" or "i'd send the boys round" or "they legally can't do that". Trust me that we have been down all of those routes and none really helped much! So sticking to solving the problem would be great )
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Old 27.02.2012, 18:24
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Re: Arbitration

These are the people you need to contact, I believe their advice is free, and the hearings not very expensive. Any decision is binding on both parties.

http://www.justice.be.ch/justice/de/...ungsbehoerden/berner-oberland.html

http://www.justice.be.ch/justice/de/...ungsbehoerden/bern-mittelland.html

Of course if the other party doesn't want to come to the table, then it might be impossible to get an agreement.

Schlichtungsbehörden, Les conseils d'arbitrage, are in every Canton.
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Old 27.02.2012, 18:26
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Re: Arbitration

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These are the people you need to contact, I believe their advice is free, and the hearings not very expensive. Any decision is binding on both parties.

http://www.justice.be.ch/justice/de/...ungsbehoerden/berner-oberland.html

http://www.justice.be.ch/justice/de/...ungsbehoerden/bern-mittelland.html

Of course if the other party doesn't want to come to the table, then it might be impossible to get an agreement.

Schlichtungsbehörden, Les conseils d'arbitrage, are in every Canton.
Thanks. Any idea (order of magnitude) how much not very expensive is?
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Old 27.02.2012, 19:19
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Re: Arbitration

No real idea, but arbitration relating to employment is free of charge, at least for the first hearings.

Maybe your Missus can pop round and ask them in Thun, http://map.search.ch/thun/scheibenst...rvice,anzeigen

Schlichtungsbehörde Berner Oberland
Verwaltungsgebäude Selve
Scheibenstrasse 11 B
3600 Thun

Often here the charges are related to the value of the amount in dispute.
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Old 27.02.2012, 20:08
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Re: Arbitration

A Schlichtungsverfahren and arbitration are not the same thing. Both parties can ask the Schlichtungsbehörde to help them reach a settlement or to make a proposed judgment for disputes up to CHF 5000. If there is a proposed judgment, either party can reject it within 20 days without giving any reason. Then, the only choice is to go to court.

With arbitration, the arbitrator(s) can make a binding award with only very limited possibilities to set it aside. And yes the parties can agree to arbitration for an existing dispute. If you are interested in arbitration, as opposed to court-assisted conciliation (Schlichtung), here is some information about costs: https://www.sccam.org/sa/en/costs.php.
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Old 27.02.2012, 20:09
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Re: Arbitration

If you can afford the amount at the moment, there's another way (which is also the way to go whenever you think that (a) the other side is not entitled to what they ask you to pay, (b) the other side, however, has got you by the b@lls, and (c) the other side is unlikely to disappear with your money and can be sued - and attached - easily). A typical situation is yours, or when your car has been repaired, the bill is a lot higher than the estimate and the garage will not release the car unless you pay the higher bill.

The solution is as follows: You pay what they ask you to pay. Before you pay, however, you take a copy of their bill, write "Zahlung ohne Anerkennung einer Rechtspflicht" ("without prejudice") on it, sign, and send it to them (or hand it to the car repair bandit there and then, in case of a disputed car repair). The same goes for the wire transfer - in the Verwendungszweck, put "Zahlung ohne Anerkennung einer Rechtspflicht" in addition to their reference.

Why is that necessary? Because payment without contesting the amount has been construed as an allowance of the other party's claims.
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Old 27.02.2012, 20:29
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Re: Arbitration

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Why is that necessary? Because payment without contesting the amount has been construed as an allowance of the other party's claims.
Which means what exactly in plain English (I'll even settle for the Queens Engligh :>)

Seriously though, can you be a bit more specific on what this means as far as being able to get the money back.
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Old 27.02.2012, 20:35
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Re: Arbitration

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If you can afford the amount at the moment, there's another way (which is also the way to go whenever you think that (a) the other side is not entitled to what they ask you to pay, (b) the other side, however, has got you by the b@lls, and (c) the other side is unlikely to disappear with your money and can be sued - and attached - easily). A typical situation is yours, or when your car has been repaired, the bill is a lot higher than the estimate and the garage will not release the car unless you pay the higher bill.

The solution is as follows: You pay what they ask you to pay. Before you pay, however, you take a copy of their bill, write "Zahlung ohne Anerkennung einer Rechtspflicht" ("without prejudice") on it, sign, and send it to them (or hand it to the car repair bandit there and then, in case of a disputed car repair). The same goes for the wire transfer - in the Verwendungszweck, put "Zahlung ohne Anerkennung einer Rechtspflicht" in addition to their reference.

Why is that necessary? Because payment without contesting the amount has been construed as an allowance of the other party's claims.
Thanks - so in this case (which I guess is a similar type thing to a "without prejudice" offer?), we pay the money, then move in as planned but sue them afterwards for breach of contract and see which way it goes?

If so, won't the court read anything into the fact that the money was paid?

(Edit - you wrote "without prejudice" in your note....speed reading! Sorry)

Last edited by Caviarchips; 27.02.2012 at 20:38. Reason: Dumassity
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Old 27.02.2012, 20:40
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Re: Arbitration

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Which means what exactly in plain English (I'll even settle for the Queens Engligh :>)

Seriously though, can you be a bit more specific on what this means as far as being able to get the money back.
Your builder says: "I'll finish by August." You plan accordingly.
Then he says: "Sorry Guv, that'll be another 10 grand. If you don't pay that, I'll finish some time in October." He has you by the balls because he knows you can't really wait until October, and your only option is to pay him.
So you pay. But you're unhappy and instruct solicitors to look at the case. They think that your builder was under an obligation to finish by August, that he was able to do so, and that he simply extorted more money from you by effectively threatening to down tools unless you hand over more cash than was agreed.
But there's a snag. You've paid the extra bill for 10 grand. And that, in many jurisdictions, means that you accept that the bill is correct and that you owe the builder that amount of money. Your case is dead.
Unless you paid "ohne Anerkennung einer Rechtspflicht". That means "I'll pay, because I can't afford to wait until we;ve settled our differences in court, but let's see who was in the right - if it was me, I'd like my money back." Which is why this method only ever works if the other party is unlikely to disappear and solvent.
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Old 09.06.2015, 21:45
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Re: Arbitration

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Before you pay, however, you take a copy of their bill, write "Zahlung ohne Anerkennung einer Rechtspflicht" ("without prejudice") on it... Why is that necessary? Because payment without contesting the amount has been construed as an allowance of the other party's claims.
Consciously bouncing this thread to highlight this useful phrase, and thanks tom tulpe.
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