The inadmissibility of an appeal against the decision to appoint an arbitrator

Facts

The dispute is between A. and B. AG. On 25 February 2016, the 1st Civil Law Court of the Federal Tribunal handed down a judgment in case 4A_490/2015. The case concerns the appointment of an arbitrator under art. 362 of the Code of Civil Procedure (CPC). The issue in dispute is whether an appeal is available against the decision of the supporting judge who appoints an arbitrator.

The parties involved are A. and B. AG. The procedure began before the cantonal court, which appointed an arbitrator. The decision was challenged before the Federal Tribunal, which was seized of a civil law appeal.

Considerations

The Federal Tribunal's decision is based on the interpretation of art. 356 para. 2 and art. 362 of the CPC. According to art. 356 para. 2, the competent cantonal court decides on the appointment of an arbitrator as the sole instance. The question is whether an appeal is available against this decision.

The Federal Tribunal refers to its previous judgment (ATF 141 III 444) which excluded the possibility of an appeal against the decision to appoint an arbitrator when it concerns a lower cantonal court. However, in the case of a refusal to appoint, a direct appeal is possible before the Federal Tribunal.

The Federal Tribunal also examines the case law relating to art. 179 IPRG, which is the parallel provision to art. 362 of the CPC in international arbitration law.…