Groupement d’Entreprises Fougerolle et consorts v. European Organization for Nuclear Research

The case concerned a major construction contract for the European Organization for Nuclear Research (CERN)’s LEP particle accelerator, concluded in 1983 between CERN and the Groupement d’Entreprises Fougerolle. The contract included a detailed arbitration clause providing for a three-member ad hoc arbitral tribunal seated in Geneva. After disputes over increased costs, the consortium initiated arbitration in 1986 and obtained an award in 1991 ordering CERN to pay more than CHF 44 million.

The consortium then filed a public-law appeal before the Swiss Federal Supreme Court seeking annulment of the award. Before addressing the merits, the Court examined CERN’s immunity, as CERN argued that Swiss courts lacked jurisdiction altogether. CERN maintained that, as an international organization, it enjoyed full jurisdictional immunity that barred any national review of the arbitral award.

The Federal Supreme Court held that CERN possesses international legal personality, recognized in both its 1953 constituent Convention and its 1955 Headquarters Agreement with Switzerland. These instruments grant CERN comprehensive jurisdictional and enforcement immunity over its property and activities unless expressly waived. The Court underscored that, unlike States, international organizations benefit from absolute immunity under the applicable treaty regime, and the distinction between acta jure imperii and acta jure gestionis does not apply to them.

The Court further noted that the Headquarters Agreement requires CERN to establish an independent mechanism for resolving private-law disputes. CERN had satisfied this obligation by creating an autonomous arbitration system within its ‘General Conditions’. According to the Court, this arbitration framework was intentionally designed to operate entirely outside national legal orders, as it excluded the application of domestic procedural law, declared the award ‘final and binding’, and included an explicit waiver of all recourse.

In light of this institutional structure, the Court found that CERN’s participation in arbitration did not amount to a waiver of immunity. Because the arbitration was not grounded in Swiss domestic law and because CERN had issued no express waiver, Swiss courts lacked competence to review the award. The Federal Supreme Court accordingly declared the appeal inadmissible, confirming CERN’s absolute immunity from judicial scrutiny of the arbitral process.