Civil law appeal against a cantonal decision declaring inadmissible an appeal against an arbitral award

Facts

The dispute opposes the Vaud companies A. SA and B. Sàrl. On 30 April 1992, the parties signed an agreement containing an arbitration clause. On 6 June 2006, they concluded an arbitration agreement. An Arbitral Tribunal of three members was constituted and its seat fixed in the canton of Vaud. On 12 November 2007, the Arbitral Tribunal rendered a partial award on the principle of the defendant's debt to the plaintiff. On 4 June 2008, the Court of Appeal of the Vaud Cantonal Court confirmed this award. On 13 September 2013, the Arbitral Tribunal rendered a supplementary award fixing the amount owed by the defendant to the plaintiff. The plaintiff filed an appeal against this supplementary award, which the Civil Court of Appeal of the Vaud Cantonal Court declared inadmissible on 14 November 2013.

The appellant, A. SA, filed a civil law appeal and a subsidiary constitutional appeal to the Federal Tribunal, requesting the annulment of the cantonal judgment and the remittal of the case to the authority appealed against for further investigation and judgment on the merits.

Considerations

The Federal Tribunal examined the question of the admissibility of the civil law appeal. It considered that the supplementary award, rendered on 13 September 2013, had put an end to an internal arbitration, since both parties, like the Arbitral Tribunal, had their seat in Switzerland and had not made use of the opting out possibility provided for in art. 353 para. 2 CPC.

The Federal Tribunal then examined the question of the delegation agreement, within the meaning of art. 390 para. 1 CPC. It considered that the cited provision raises a number of questions that divide the doctrine, in particular on the form of the agreement concluded subsequently and on the moment until which it can be passed. However, these questions did not arise in this case, as the appellant argued that the delegation agreement had materialized in the written agreement of 6 June 2006, which was equivalent to an arbitration agreement.

The Federal Tribunal then examined the question of the admissibility of the civil law appeal. It considered that the appellant had a…