Domestic arbitration: review of the amount of the arbitral tribunal's fees and costs, remuneration of an trainee lawyer acting as secretary, dismissal of the appeal

Facts

This case concerns a civil law appeal directed against the final arbitral award rendered on 28 November 2018 by an arbitral tribunal sitting in Lausanne, in a domestic arbitration dispute concerning arbitration costs.

The parties, [X.] (the claimant and appellant) and [Z.] (the respondent and appellee, represented by a lawyer), signed in August 2015 a "trust agreement", with X. as trustee and Z. as settlor. This agreement contained an arbitration clause preceded by a conciliation procedure, which did not succeed.

The arbitral tribunal, composed of three Vaud lawyers, took office on 23 December 2016. The claimant had already brought claims for payment of fees of CHF 318,289.70 with interest. After a preliminary hearing was postponed, it was held on 3 October 2017; with the parties' agreement, the tribunal appointed a trainee lawyer as secretary.

On 1 February 2018, the tribunal set an advance on costs of CHF 75,000 per party. The claimant refused to pay its share, and the respondent did so as well; after a new demand of 5 March 2018 addressed to the respondent, the latter also refused. On 9 April 2018, the tribunal announced that the proceedings had become moot and invited the parties to state their position on costs.

In its final award of 28 November 2018, the tribunal found that the parties were no longer bound by the arbitration agreement, removed the case from the docket, and fixed the tribunal's fees and costs at CHF 36,416.70, charged in equal halves to each party, each party bearing its own costs without any award of costs. The members of the tribunal devoted fifty-three hours at a rate of CHF 500 per hour, and the secretary thirty-nine hours and forty minutes at a rate of CHF 250 per hour.

The claimant asks the Federal Supreme Court to reduce the arbitral tribunal's fees and costs to CHF 10,965. The respondent accepts the amount claimed but asks that all costs be charged to the claimant. The arbitral tribunal asks for the appeal to be dismissed.

Considerations

The civil law appeal is open against the arbitral award in domestic arbitration matters (art. 77 para. 1 let. b FSCA). It is unnecessary to decide whether a minimum amount in dispute (art. 74 para. 1 let. b FSCA) is required, since the appeal is in any event bound to be dismissed.

The ground provided for by art. 393 let. f CPC allows a party to assert that the arbitrators' fees and costs are manifestly excessive; the Federal Supreme Court may then substitute a reduced amount (art. 395 para. 4 CPC). Specific figures are required, which is satisfied here. However, this ground only concerns the amount of the costs and not their allocation between the parties. The respondent's requests that all costs be charged to the claimant are therefore inadmissible, all the more so as they were not submitted within the thirty-day period of art. 100 para. 1 FSCA.

The claimant does not dispute that the arbitral tribunal may refer to the usual rates of its members. The hourly rate of CHF 500 applied to arbitrators who are lawyers is not unusual; it matters little that certain law firms advertise rates of CHF 300 to 400 or that the Vaud moderation authority accepted a rate of this magnitude. Review of the file and of the hours billed reveals no notable anomaly, the statements of the two other arbitrators calling for no comment.

The secretary, a trainee lawyer, could not reasonably be regarded as assigned to mere secretarial tasks (typing, fair copies,…