Decision of the supporting judge refusing to appoint an arbitrator in the context of an internal arbitration

Facts

The present case concerns a dispute between company A. SA and V. SA, P. and the co-owners of a building located in Monthey. In 2007, V. SA and W. SA, as the principals, concluded two construction contracts with company X. SA, each containing an arbitration clause referring to SIA Directive 150 for the settlement of disputes. In 2008, X. SA filed a request with the District Court of Monthey for the provisional registration of a mechanic's lien on the co-ownership shares of the two buildings. As X. SA was declared bankrupt in 2009, A. SA took over the proceedings as the assignee of the rights of the bankruptcy estate.

In 2014, A. SA requested the parties to the construction contracts to appoint their arbitrator, and then filed a request for the appointment of an arbitrator with the District Court of Monthey. On December 22, 2014, the deputy judge of the court declared this request inadmissible, considering in particular that certain respondents were no longer owners of the co-ownership shares concerned and that the subject matter of the dispute was not sufficiently identified.

Considerations

The Federal Tribunal upheld the appeal filed by A. SA and annulled the decision of the deputy judge. It considered that the decision of the supporting judge refusing to appoint an arbitrator in the context of an internal arbitration can be the subject of a direct appeal to the Federal Tribunal, even if it does not emanate from a higher court within the meaning of Art. 75 para. 2 of the Federal Tribunal Act.

On the merits, the Federal Tribunal ruled that the conditions for a valid arbitration agreement…