Facts
On 4 December 2002, B. and [C.] initiated an arbitration procedure directed in particular against [A.] in order to obtain the payment of damages for breach of a contract concluded on 8 March 1998. None of the parties is domiciled in Switzerland. The contract contains an arbitration clause providing that all disputes arising therefrom shall be submitted to an arbitral tribunal, composed of three members, which shall sit in Zurich and apply the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL). English has been chosen as the language of the arbitration.
[A.] filed a public law appeal against the interim award of the arbitral tribunal which upheld its jurisdiction over [C.] and rejected the objection of lack of jurisdiction ratione materiae.
Considerations
According to the case law of the Federal Tribunal, the waiver of appeal against an international arbitral award, provided for in Art. 192(1) PILA, is subject to two cumulative conditions: the foreign nationality of the parties and an express declaration excluding any appeal.
The Federal Tribunal has examined in several judgments the issue of the waiver of appeal, but has never accepted that the parties have sufficiently clearly manifested their concordant will to exclude any appeal. It has in particular held that the reference by the parties to an arbitration regulation containing a waiver of all appeals is not sufficient to constitute a valid waiver.
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