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IV.Landmark Cases

1.INTERNATIONAL CASE30

In this case, a firm that owned a Swiss patent and had its registered office in Denmark accused a firm with its registered office in Switzerland of infringing the aforementioned patent. The question was whether this qualified as an international matter in which case territorial jurisdiction would be determined by international treaties or if it should instead be subject to Swiss jurisdiction regulations. The Federal Supreme Court stated that the question of whether a matter was of international nature or not must be examined in each case individually and under the given circumstances. Therefore, it cannot be assumed that every case in which one party is of foreign nationality will automatically qualify as international. However, the Federal Supreme Court decided that a case will always qualify as international if one of the parties has its domicile or registered office in a foreign country. This applies regardless of the party’s role in the proceedings (claimant or defendant).

The Federal Supreme Court rendered this decision with regards to the Swiss Jurisdiction Act, a piece of legislation that has since been replaced by the Federal Code of Procedure. However, the rules of the Jurisdiction Act were simply transferred in their full content to the Federal Code: thus, this landmark case on the international nature of a dispute is still relevant today.

2.DÜRRENMATT’S HEIRS31

The famous Swiss author FRIEDRICH DÜRRENMATT (one of his most well-known works being the highly recommended play “The Physicists”) died on 14 December 1990, leaving his wife CHARLOTTE DÜRRENMATT and his three children as sole heirs. However, the publishing house he had worked with erroneously transferred the rights of theatrical performances of DÜRRENMATT’S work “Midas” to a Bavarian theatre. Thereupon, CHARLOTTE DÜRRENMATT filed an action for a declaratory judgement, demanding that the court declare the transfer of rights invalid. The Federal Supreme Court ruled that the rights on DÜRRENMATT’S work were common property of his heirs; hence, they could only jointly appear as plaintiffs. This is largely to ensure that none of the heirs suffer any damage due to the sole efforts of another heir. Consequently, CHARLOTTE DÜRENMATT–who had been listed alone in the statement of claim – was not a legitimate plaintiff: all of DÜRRENMATT’S heirs would have to have been listed in order for the claim to proceed.

This decision occurred before the Federal Code of Civil Procedure was enacted. Today, the mandatory joinder of parties is regulated by Article 70. Nevertheless, the decision is still important today, as the substantive civil law that determines which cases two or more persons must appear jointly in has not changed since the entry into force of the Code of Civil Procedure.

3.AGREEMENT ON JURISDICTION32

In this case, the claimant – a lawyer – filed an action for performance to claim the fees for his legal services against the defendant in Winterthur, though the defendant’s domicile was in Schaffhausen. The claimant justified his petitioning of the court in Winterthur on an agreement on jurisdiction in his Terms and Conditions (T&Gs) that the defendant had signed. The Federal Supreme Court stated that parties can only waive jurisdiction at the defendant’s domicile if there is a consensus between them regarding this matter. If an actual consensus in the sense of an agreement cannot be proven, it is the normative consensus33 that counts. Such a consensus is only found if the contracting party can assume in good faith that the other party accepted the agreement on jurisdiction by signing the contract. Relevant factors in this context are, for example, the business experience of the waiving party, the arrangement of and emphasis on the jurisdiction clause within the T&Gs, etc. The Federal Supreme Court established that a jurisdiction clause must be on prominent display and be clearly marked out in the T&Gs if the contracting party does not have a lot of business experience. This is because otherwise it cannot be assumed that the party wanted to waive jurisdiction at his or her domicile (this requirement is known as the typographic practice).

As the typographic practice was developed before the Federal Code of Civil Procedure entered into force, doctrine largely assumes that it was abolished by the new Code and that nowadays, it is sufficient for an agreement on jurisdiction to be written, as opposed to clearly demarcated. Nonetheless, the Swiss Federal Supreme Court has confirmed its previous practice in several more recent decisions.34

4.FILING AN APPEAL WITH AN INCOMPETENT COURT35

A woman filed an action against her employer before the employment court in Zurich which dismissed her case. She filed an appeal against this judgement on the last day of the time limit via the Swiss Postal Services, addressing it to the employment court that had dismissed her claim. In reality, it was the High Court of Zurich that had jurisdiction over the appeal. Thus, the High Court rejected the appeal on the basis that it had not been appropriately filed within the time limit. Upon a further appeal to the Federal Supreme Court, it was held that the lack of a legal provision covering situations where the deadline to appeal was missed due to the application being filed with an incompetent court was not intended by the legislator; thus there was a gap in the law.

Before the Federal Code entered into force in 2011, the Federal Supreme Court had already defined it as a “principle of civil procedure” that filing an appeal with an incompetent court and therefore missing the deadline to appeal does not preclude compliance with said deadline. This principle was also applied to situations where there was a gap in the regulation of this issue in the former cantonal codes. According to the Federal Supreme Court, this principle has continued to apply since the entry into force of the Federal Code, albeit in a slightly modified form. Specifically, because court organisation is still within the cantons’ domain; it might not be possible for a federal authority or one from another canton that mistakenly receives an appeal to accurately determine the authority that actually has jurisdiction in order to forward the appeal on towards it. Hence the principle now only applies where the party mistakenly addresses the appeal to the court that delivered the disputed judgement: as soon as the appeal is filed with this court, the deadline is considered to be met. By contrast, if an appeal remedy is filed with any other incompetent authority, compliance with the deadline can only be assumed if the incompetent authority forwards the documents towards the competent authority within the deadline: notably, such authorities have no legal obligation to do so. Of course this argumentation is not without cynicism as the Federal Supreme Court obviously does not have the confidence in the cantonal courts to determine the competent authority but requests the exact same thing from the claimant.

As the claimant in this case had filed the appeal against the judgement of the employment court with the employment court itself, the deadline was met.

5.INCORRECT INSTRUCTIONS ON OBJECTION REMEDIES36

In this case, a party raised an objection to the decision of a supervisory authority in debt enforcement matters to the Federal Supreme Court, under the assumption the deadline for raising such an objection was 30 days from notification of the original decision. In this case, because the claimant objected to the decision of a cantonal supervisory authority in debt enforcement matters, the deadline was only 10 days. The party had been given incorrect instructions on the deadline by the supervisory authority. The Federal Supreme Court stated that, according to federal law, such incorrect instructions must not result in disadvantages for the party in question (Article 49 Federal Supreme Court Act).

But the Federal Supreme Court decided that this provision is only applicable if the party did not know and also could not have known despite exercising reasonable diligence that the instruction was incorrect. Further, it established that a person who is not legally trained and who is not represented by a legal agent cannot be blamed for not realising that an instruction was incorrect, except where they have relevant knowledge from prior proceedings. As this exception was not applicable in this case, the Federal Supreme Court declared the objection admissible despite the fact that the party had failed to comply with the 10 day deadline.

30BGE 131 III 76.

31BGE 121 III 118.

32BGE 124 III 72.

33According to the principle of objective interpretation, a declaration of intention is to be understood the way the other party of the contract could and did in good faith understand it.

34Judgment of the Federal Supreme Court 4A_4/2015 of 9 March 2015, consideration 2; Judgment of the Federal Supreme Court 4A_247/2013 of 14 October 2013, consideration 2.1.2.

35BGE 140 III 636.

36BGE 135 III 374.