Facts
This case involved a consortium agreement dated December 17, 2007, in which various parties had formed a consortium. Clause XI of the contract contained an arbitration clause, according to which disputes among the shareholders regarding the contract and the work contracts concluded by the consortium with the shareholders should be "settled by an arbitral tribunal, if possible to the exclusion of the ordinary courts."
The plaintiff filed a claim for payment against his four co-shareholders, whereupon the defendants raised the arbitration plea. The District Court of Meilen did not enter into the claim, which the plaintiff appealed to the High Court of the Canton of Zurich. The High Court dismissed the appeal.
The plaintiff then filed a civil law appeal to the Federal Supreme Court, which remanded the case for a new decision to the lower instance.
Considerations
The Federal Supreme Court concluded that the parties had not yet concluded an arbitration agreement within the meaning of Art. 61 CPC with the arbitration clause in Clause XI of the consortium agreement. Although they used the terms "arbitral tribunal" and "sole arbitrator", the wording shows that they only wanted to "try, if possible" to conclude a specific arbitration agreement. Even if they wanted to regulate the case of an appeal to the state courts with the second half of the sentence, they had provided in the first half that a consensual appointment of the arbitral tribunal might not be possible and expressly reserved the right to call upon the competent state court for this case.
The…