Facts
On March 14, 1966, the landowner Y. concluded a building lease contract with [Z.] sen., the father of the appellant [Z.] jun., for a property in A. The property was developed with a two-family terraced house. On April 26, 2001, the appellant as the builder submitted an application for the construction of an entrance hall with the use of the flat roof of the upper house. The municipal council of A. granted the application. However, the landowner informed the appellant that although she waived an appeal against the building permit, she reserved the right to enforce the building lease contract under civil law, as the planned staircase to the terrace and the use of the roof area would contradict the content of the building lease contract.
Subsequently, the appellant filed a lawsuit before the arbitral tribunal appointed in accordance with the building lease contract against the landowner, requesting a declaration that he was entitled to realize the roof access and a roof terrace. The arbitral tribunal dismissed the main claim and, in upholding the counterclaim, prohibited the appellant from expanding the existing roof exit and installing wind protection walls or other devices on the flat roof that would serve the use of the roof area as a roof terrace and exceed the existing 110 cm high parapet. In the event of non-compliance, punishment for disobedience against official orders pursuant to Art. 292 of the Swiss Criminal Code (StGB) and enforcement were threatened.
Considerations
The appellant filed a nullity appeal against the judgment of the arbitral tribunal with the High Court of the Canton of Zurich. However, the High Court did not enter into the appeal insofar as the appellant had criticized the arbitral tribunal's assessment of the evidence as arbitrary.
The appellant claims that the High Court's failure to enter into the nullity appeal violated Art. 29 para. 2 of the Swiss Federal Constitution (BV) and Art. 36 lit. f of the Concordat on Arbitration (KSG). In his view, the ground for nullity of "obviously…