Decision on the admissibility of the civil law appeal against an interlocutory decision rendered by the judicial authority on the appeal for nullity in the context of an internal arbitration

Facts

On 21 January 2002, company X. AG (the appellant) concluded a framework delivery contract valid until the end of 2006 with company Y. AG (the respondent). The appellant considers that this contract became void on 31 December 2002. The respondent disputes this statement as well as the validity of a termination. It has referred the matter to the arbitral tribunal of the Zurich Chamber of Commerce, which rendered an interlocutory decision on 23 January 2007 stating that the framework contract remained valid after 31 December 2002 and that the termination pronounced by the appellant was null and void. The appeal for nullity filed by the appellant was dismissed by the Superior Court of the Canton of Zurich on 14 May 2007.

The Federal Tribunal does not enter into the merits of the civil law appeal filed against this interlocutory decision, as in the event of the appeal being upheld, it would not be able to render a final decision and no irreparable harm has been demonstrated.

Considerations

An interlocutory decision, which does not concern jurisdiction or a request for recusal, can only be the subject of a civil law appeal if the conditions of Art. 93 para. 1 FSCA are met. As, in internal arbitration, the appeal for nullity is of a cassatory nature, the Federal Tribunal cannot, by upholding the appeal, provoke a final decision unless the competent appellate authority has been able to decide itself or if the arbitral award is not affected by the upholding of the appeal.

The Federal Tribunal…