<iframe src="//www.googletagmanager.com/ns.html?id=GTM-5T7PGR" height="0" width="0" style="display:none;visibility:hidden">


Forum Running in the area of action for a negative declaratory judgement finally also a valid option for plaintiffs in switzerland

Posted by on 12 April 2018

For companies domiciled in Switzerland or other parties wishing to avert an impending lawsuit abroad in Switzerland or before Swiss courts, the option of action for a negative declaratory judgement is now available as a valid option, at least in international cases.


By decision of 14 March 2018 (BGer 4A_417/2017; designated for publication, available in German/French/Italian), the Federal Supreme Court relaxed its previous overly restrictive practice regarding the existence of an interest in legal protection in actions for a negative declaratory judgement.

In a change to the previous case law, the intention of one party to secure a place of jurisdiction in Switzerland for an impending legal dispute in an international relationship is now regarded as sufficient interest in legal protection for a corresponding declaratory action. This opens up new possibilities for defence parties in Switzerland.

Swatch Group Ltd stopped supplying wholesalers with spare parts for Swatch Group watches at the end of 2015. One British company subsequently demanded that Swatch Group Ltd and two of its subsidiaries (hereinafter referred to as "Swatch Group") resume their previous supply, otherwise they would bring an action without further notice. Even before the British company actually filed its action for performance in England, Swatch Group had already demanded to the Commercial Court of the Canton of Berne to declare that it was not obliged to supply and that it owed the English company nothing due to the suspension of supply. The Commercial Court limited the proceedings to the question of whether Swatch Group had a sufficient interest in legal protection in its "action for a negative declaratory judgment". The Commercial Court denied this because, according to case-law, a party's interest in securing a place of jurisdiction in Switzerland by means of an action for a negative declaratory judgment does not justify a sufficient interest in legal protection. The Commercial Court therefore did not admit the suit.

The Federal Supreme Court has now upheld the appeal of Swatch Group. In particular, the Federal Supreme Court states the following:

First, the Federal Supreme Court held that the Lugano Convention does not regulate the question of the interest of legal protection for actions arising from the Lugano Convention and that this question is judged according to national law.

The question of the conditions under which a state's jurisdiction can be exercised is of procedural nature, which is why the conditions of the interest of declaratory judgement are subject to the lex fori.

In accordance with the case law of the European Court of Justice on the suspension of lis pendens under the Brussels I Regulation, the Federal Supreme Court then assumes that the action for performance and the action for a declaratory judgment that negates these have the same subject matter (core point theory). From this, the equality of performance and negative declaratory action is derived as a general principle. Thus, if the equality of the action for performance and the negative declaratory action is not to be affected, restrictive conditions of the negative declaratory action cannot be maintained and increased requirements for the negative declaratory action undermine this equality.

The Federal Supreme Court further states that certain conditions must always be fulfilled with regard to the interest of declaratory judgment.

The legal relationship between the parties must obviously be uncertain and this uncertainty can be remedied by a court decision. No other action (action for performance or modification) may be available, since the declaratory action is only subsidiary. Furthermore, the continuation of the uncertainty must be unreasonable for the plaintiff and thus the interest of the negative declaratory judgment plaintiff in having the existing uncertainty clarified in court itself must appear worthy of protection in such situations in international circumstances. In this very matter, the Federal Supreme Court has now correctly stated that merely securing a place of jurisdiction acceptable to one party is an actual interest worth protecting in order not to have to face certain practical disadvantages, such as a foreign judicial system or a foreign language.

As a result, the Federal Supreme Court has finally brought the possibilities for legal action in Switzerland that have so far been denied in the area of forum running into line with the possibilities for legal action abroad and eliminated the existing discrimination against parties willing to bring legal action in Switzerland in international relations.

Now that the Federal Supreme Court has ruled that, at least in international relations, a party's interest in securing an acceptable place of jurisdiction in forthcoming court proceedings qualifies as sufficient interest for a negative declaratory judgment, a party in Switzerland willing to bring an action for such a judgement now has the option of blocking a counterparty's action for performance filed at a later date by filing an action for a negative declaratory judgment in due time.

In Switzerland, the tactical procedural means of forum running is now also made available to parties in the area of actions for a negative declaratory judgment, which is a good thing.

If you liked this article you may also be interested in reading about:

CAS decision overturned by the Swiss Federal Supreme Court, written by Dr. Lucien Valloni and Davide Colacino

Is a jurisdiction clause of a Swiss bank for foreign consumers valid? written by Dr. Lucien Valloni

or read this article in German


Stay on top of the latest legal topics in this field and subscribe now to receive the latest blog posts as soon as they appear on our website.



Topics: Litigation

Name 20

Dr. Lucien W. Valloni

Lucien is a highly experienced litigator in both international and domestic criminal, commercial and arbitration cases in the Swiss courts, up to the Swiss Federal Supreme Court level. Lucien is well known for his expertise in the field of appealing arbitration awards to the Swiss Federal Supreme Court. Lucien assists damaged civil parties in criminal proceedings and he is active in relation to the enforcement of foreign judgements as well as in big complex cross boarder litigation including protection and recovery of funds, including enforcement of state debts. Lucien is also one of the best-known sports lawyers in Switzerland, with extensive experience in sports litigation on various bodies of sports organisations as well as in sports arbitration at the Court of Arbitration for Sport in Lausanne. Lucien has been a partner at our Zurich office since 2005. He has represented domestic and international clients in numerous high-profile cases in various fields and courts up to the Swiss Federal Supreme Court. He advises clients on commercial, employment, entertainment and media, insurance, real estate, aviation and international enforcement matters. Lucien has published textbooks on litigation and sports law in Switzerland and lectures widely.He obtained his law degree from the University of Zurich in 1990 and gained a PhD from the Faculty of Law of the University of Zurich in 1998 with a thesis on the jurisdiction of courts at the place of performance of an obligation under the Lugano and Brussels Conventions. (He graduated with the distinction summa cum laude and the Professor Walther Hug-Preis Schweiz, awarded for outstanding theses graded with the highest possible mark by a Swiss law school.) He has worked as a law clerk at the District Court of Zurich, the Court of Appeal of the Canton of Zurich and at the Court of Cassation of the Canton of Zurich. His working languages are German, English, Italian and French.Lucien is a member of the Zurich Bar Association, the Swiss Bar Association and the Swiss Arbitration Association (ASA). He is, president of the Swiss Association of Football Players (SAFP) and president of the World Association of Icehockey Players’ Unions (WAIPU) as well as a Member of the Association Internationale des Avocats de Football (AIAF). He is a board member of FIFPro (Fédération Internationale des Associations de Footballeurs Professionnels) and FIFPro Division Europe, and member of the Employment Law Alliance, the Associazione Internazionale Giuristi di Lingua Italiana (AIGLI) and the Swiss-Italian Chamber of Commerce (Camera di Commercio Italiana per la Svizzera). Lucien is a lecturer at the Paris-Sorbonne University in Abu Dhabi.

Connect with me: