Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Switzerland

I. Sources of private international law

1. Major legislation

Swiss private international law rules, rather than being embodied in the Civil Code or in the Code of Obligations, are enshrined in the Swiss Private International Law Act (Bundesgesetz über das Internationale Privatrecht of 18 December 1987, 1988 BBl I 5, as amended, henceforth Swiss PILA), which entered into force on 1 January 1989.

Despite a thorough period of elaboration lasting some 14 years and including 19 largely cosmetic amendments, the basic structure has remained unchanged. Only new chapters have been added, without disorganizing the original structure.

Divided into 16 chapters, the Swiss PILA mirrors the structure of the Swiss Civil Code (Schweizerisches Zivilgesetzbuch of 10 December 1907, AS 24 233, as amended, henceforth CC) and the Code of Obligations (220 Federal Act of 30 March 1911 on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations)). The first chapter contains general provisions (scope of application, definition of domicile, residence (→Domicile, habitual residence and establishment) and →nationality), while the second relates to natural persons. Chapter 3 addresses matrimonial law, and a new Chapter 3a is dedicated to →registered partnerships. Chapter 4 relates to parent–child partnership, Chapter 5 to guardianship and other protective measures, and Chapter 6 ends the provisions on family matters with rules on inheritance. Chapter 7 concerns property, with an added Chapter 7a on securities held with an intermediary after the ratification of the Hague Securities Convention (Hague Convention of 5 July 2006 on the law applicable to certain rights in respect of securities held with an intermediary, 46 ILM 649). Chapter 8 relates to intellectual property rights, Chapter 9 to the law of obligations and Chapter 9a to trusts. Then Chapter 10 addresses company law, followed by Chapter 11 on bankruptcy and composition agreements. Chapter 12 concerns international arbitration. The final chapter (Chapter 13) is dedicated to final provisions. Apart from the first and final ones, each of these chapters contains provisions on the jurisdiction of Swiss authorities, then on the p. 1applicable law and finally on the recognition of foreign decisions. The modern approach of the Act, based on the principle of proximity but also on the principles of →party autonomy and protecting the weaker party, has influenced many other legal systems, notably Quebec’s 1994 codification of private international law (SQ 1991, c 64).

2. International conventions

In addition to the Swiss PILA, international conventions on private international law should be taken into account, as they supersede national law and are directly applicable. Even though this principle was self-evident, art 1(2) Swiss PILA expressly gives priority to the application of treaties.

Attention should be drawn to the →Lugano Convention (Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L 339/3), as whenever this Convention is applicable, Swiss provisions on international jurisdiction remain unused.

Switzerland has ratified a large number of Hague Conventions and the Swiss PILA incorporates them by direct reference (see, for instance, arts 49, 82, 85 and 118). Switzerland is a party to the Hague Civil Procedure Convention (Hague Convention of 1 March 1954 on civil procedure, 286 UNTS 265), the Hague Sales Convention (Hague Convention of 15 June 1955 on the law applicable to international sales of goods, 510 UNTS 147), the Hague Child Maintenance Convention (Hague Convention of 24 October 1956 on the law applicable to maintenance obligations towards children, 510 UNTS 161), the Hague Child Maintenance Convention (Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children, 539 UNTS 27), the Hague Infant Protection Convention (Hague Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants, 658 UNTS 143), the Hague Testamentary Dispositions Convention (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175), the Hague Legalisation Convention (Hague Convention of 5 October 1961 abolishing the requirement of legalisation for foreign public documents, 527 UNTS 189), the Hague Service Convention (Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, 658 UNTS 163), the Hague Divorce and Separation Convention (Hague Convention of 1 June 1970 on the recognition of divorces and legal separations, 978 UNTS 399), the Hague Traffic Accidents Convention (Hague Convention of 4 May 1971 on the law applicable to traffic accidents, 965 UNTS 415), the Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241), the Hague Maintenance Recognition and Enforcement Convention (Hague Convention of 2 October 1973 on the recognition and enforcement of decisions relating to maintenance obligations, 1021 UNTS 209), the Hague Maintenance Applicable Law Convention (Hague Convention of 2 October 1973 on the law applicable to maintenance obligations, 1056 UNTS 204), the Hague Child Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89), the Hague Access to Justice Convention (Hague Convention of 25 October 1980 on international access to justice, 1510 UNTS 375), the Hague Trust Convention (Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition, 1664 UNTS 311), the Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption, 1870 UNTS 167; 32 ILM 1134), the Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391), the Hague Adult Protection Convention (Hague Convention of 13 January 2000 on the international protection of adults, Hague Conference on Private International Law (ed), Collection of Conventions (1951–2009) (Intersentia 2009) 426) and the Hague Convention of 5 July 2006 on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary (Hague Convention of 5 July 2006 on the law applicable to certain rights in respect of securities held with an intermediary, 46 ILM 649).

Apart from that, Switzerland has ratified the Refugee Convention (Geneva Convention of 22 April 1951 Relating to the Status of Refugees, 189 UNTS 137) and the Protocol Relating to p. 1the Status of Refugees of 31 January 1967 (606 UNTS 267), the UN Convention on the Legal Status of Apatrides of 1954 (RS 0.142.40), the UN Maintenance Convention 1956 (United Nations Convention of 20 June 1956 on the recovery abroad of maintenance, 268 UNTS 3 and 649 UNTS 330), the European Convention on the Adoption of Children of 24 April 1967 (634 UNTS 256), the European Foreign Law Convention (European Convention of 7 June 1968 on information on foreign law, 720 UNTS 147), the European Convention on State Immunity (European Convention of 16 May 1972 on State Immunity, CETS No 74) and the European Child Custody Convention (European Convention of 20 May 1980 on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children, 1496 UNTS 37). Switzerland is also a member of the International Commission on Civil Status (ICCS) (→CIEC/ICCS (International Commission on Civil Status)) and has ratified eight of its conventions that have an impact on private international law (Convention of 27 September 1956 on the issue of certain extracts from civil status records to be sent abroad, 299 UNTS 211; Convention of 26 September 1957 concerning the issuance free of charge of copies of civil registration documents and the waiver of authentication requirements relating thereto, 932 UNTS 35; Convention of 14 September 1961 on the extension of the competence of authorities qualified to receive acknowledgements of children born out of wedlock, ICCS Convention No 5, 932 UNTS 63; Convention of 12 September 1962 concerning the establishment of maternal filiation of children born out of wedlock, 932 UNTS 76; Convention of 10 September 1964 concerning decisions with regard to the rectification of civil registration documents, 932 UNTS 99; Convention of 13 September 1973 on the reduction of the number of cases of statelessness, 1081 UNTS 287; Convention of 8 September 1976 concerning the issue of plurilingual extracts from civil status records, 1327 UNTS 3; and Convention of 5 September 1980 concerning the issue of certificates of non-impediment to marriage, 1390 UNTS 65). In addition, Switzerland has concluded a number of bilateral treaties, although the majority concluded with EU Member States became obsolete when the →Lugano Convention (Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L 339/3) entered into force.

3. Role of case-law

Case-law was customarily and remains a major source of private international law in Switzerland. Until the entry into force of the Swiss PILA in 1989, case-law was of utmost importance in order to fill the gaps in the Federal Act of 25 June 1891 on the Civil Law Status of Immigrants and Temporary Residents (Loi fédérale sur les rapports de droit civil des citoyens établis ou en séjour, LRDC, RO 1972 2873 ch II 1, 1977 237 ch II 1, 1986 122 ch II 1 (abrogated)) (see below section II.). Swiss law itself vests judges with the power to fill in gaps ‘as a legislator’ (art 1(2) Swiss CC). In order to accomplish this task of construction, the CC allows the judge wide discretion (art 4). Moreover, the Second Protocol on the Uniform Interpretation of the Lugano Convention (which forms part of the Convention according to art 75 of the Convention, available at <http://curia.europa.eu>) requires a Swiss court to pay close attention to ECJ case-law and the case-law of other Member States. Accordingly, in practice, Swiss courts repeatedly cite ECJ decisions in their own judgments.

4. Role of doctrinal writing

The importance of doctrinal writing in Swiss private international law is reflected in two aspects.

First, the elaboration of the Swiss PILA was undertaken thanks to an Assembly of the Swiss Lawyers Association (Société suisse des Juristes, Schweizerischer Juristenverein) in 1971, where Professor Frank Vischer and Professor Gerado Broggini presented reports calling for the codification of private international law. This move led to the adoption of a von Arx-Egli motion of 1 December 1971/7 July 1972 of the Federal Council, whereby two members of the Parliament invited the Federal Council to present a report on the Federal Act of 25 June 1891 on the Civil Law Status of Immigrants and Temporary Residents as well as a recast. A commission of experts was consequently appointed in 1973 and was divided into six expert commissions, all of which were presided over by a professor of law, except for that concerned with international civil procedural law. The Act was prepared between 1973 and 1978 by a group of p. 1experts, professors and lawyers, as opposed to political commissions. The seminal influence of academics on the adoption of the Swiss PILA illustrates the continuing role that doctrinal writing has in the development of Swiss private international law.

Second, the influence of doctrinal writing is shown by the fact that judicial decisions cite doctrinal writing, which is regarded as a direct source of inspiration in case-law according to art 1 (3) Swiss CC on the application of the law (‘In doing so, the court shall follow established doctrine and case law’). It should also be mentioned that private international law is taught in all Swiss universities.

II. History of private international law

The idea of codifying private international law in Switzerland dates back to the 19th century. From 1862 to 1887, the Federal Council presented various projects, which, however, involved only inter-cantonal conflicts of law at a time when civil law belonged to state law and was not a federal law issue. These efforts led to the adoption of the Federal Act of 25 June 1891 on the Civil Law Status of Immigrants and Temporary Residents (Bundesgesetz vom 25. Juni 1891 betreffend die zivilrechtlichen Verhältnisse der Niedergelassenen und Aufenthalter, NAG), which was applied by way of analogy to most questions relating to international conflicts of law.

The elaboration of the CC (adopted in 1907 and entering into force in 1912) renewed the attempt to codify private international law rules. Eugen Huber, the father of the CC, supported the idea of including private international law rules along with substantive rules. The project was based on the →nationality principle for foreigners in Switzerland, but departed from the nationality criteria for those born in Switzerland or those with over ten years’ uninterrupted domicile in Switzerland. This abandoning of the nationality criteria provoked a hostile reaction and the idea of including private international law rules was thus withdrawn.

Despite constant calls by a majority scholastic opinion to codify private international law, during almost one century, private international relationships in Switzerland were governed by the Federal Act of 25 June 1891 on the Civil Law Status of Immigrants and Temporary Residents, until the entry into force of the Swiss PILA on 1 January 1989.

III. Administration of private international law

1. General features of the international jurisdiction of Swiss courts

No special courts exist in Switzerland for international cases. However, given the high level of internationality of the Swiss economy and the diversity of the Swiss population, numerous private international law cases have been decided by the Federal Tribunal. These cases are often consulted from abroad due to the model character of the Swiss PILA. In matters of jurisdiction, interest in Swiss case-law is stressed by the common applicability of the →Lugano Convention in relation to the matters regulated therein. Concerning these matters, it must be recalled that jurisdiction is to be decided according to Lugano Convention rules whenever the defendant’s domicile is located, besides Switzerland, in →Norway, →Iceland or an EU Member State. For situations contemplated in art 22 Lugano Convention (exclusive jurisdiction), the defendant’s domicile is not relevant, and for those stipulated in art 23 Lugano Convention (choice of court), the domicile of any of the parties in a contracting state is required. As a result, the scope of the jurisdiction rules contained in the Swiss PILA is narrower that it may seem at first glance. Thus, art 2 Swiss PILA, which contains the general forum of the domicile of the defendant (a forum that is guaranteed by art 30(2) Swiss Constitution 1999 (Federal Constitution of the Swiss Confederation of 18 April 1999, RO 1999 2556)), will only be operative in matters not covered by the Lugano Convention. The Lugano Convention has also directly influenced the content of the Swiss PILA. Actually, several of the general provisions on jurisdiction set out in s 2 of Chapter 1 Swiss PILA were modified in 2009 as a consequence of the adaptation by the Swiss PILA of the new version of the Lugano Convention (AF, 11 December 2009, RO 2010 5601, FF 2009 1497).

Beyond the real scope of the forum based on the defendant’s domicile, several provisions of s 2, Chapter 1 deserve to be highlighted. First, the Swiss PILA attributes a fundamental role to →party autonomy. Thus, concerning pecuniary claims, parties may agree upon the court, either expressly or impliedly (arts 5 and 6), while with respect to arbitrable disputes, parties may submit to arbitration (art 7). In all such cases, as a general rule, Swiss courts excluded by the parties will not have jurisdiction. Second, the p. 1Swiss PILA includes in its art 3 an express formula of forum necessitatis, which the Federal Tribunal has construed narrowly (see SFT, 22 May 2007, 4C.379/2006). Third, the Swiss PILA contemplates as a ground of jurisdiction the attachment of defendant’s property (art 4). Nevertheless, the inclusion of this forum in Annex I of the Lugano Convention, that is, in the list of extraordinary grounds for jurisdiction, means that it cannot be invoked against defendants domiciled in a contracting state. Ultimately, a general rule on →lis alibi pendens (art 9 Swiss PILA) compels Swiss courts to stay proceedings when an action between the same parties on the same matter has already been brought abroad. In order to stay proceedings, Swiss courts must evaluate whether it can be expected that the foreign court will within a reasonable timeframe render a decision capable of being recognized in Switzerland. Swiss courts must dismiss the action if a foreign decision recognizable in Switzerland is submitted to them.

2. Application and enforcement of foreign law

a) Designation of foreign law

The third section of the first chapter indicates how Swiss courts should determine the applicable foreign law. Article 13 Swiss PILA begins by stating that: ‘The reference in this Code to a foreign law includes all provisions applicable to the facts of the case under that law. The application of a provision of foreign law is not precluded solely because the provision is attributed the character of public law.’ The first sentence means that the lex causae should be applied as it is applied in the country to which it belongs, including its rules of qualification and its rules of applicability rationae temporae. The second sentence goes even further and posits that, even if the specific provisions of the designated law are public law, it does not prevent their application.

Whether provisions of the Swiss PILA also designate the choice-of-laws rules of the designated law is decided by art 14. Indeed, art 14 provides that the →renvoi to Swiss law (renvoi au premier degré or Rückverweisung) or to another law (renvoi au second degré or Weiterverweisung) should be observed only when a specific provision so provides, with the exception of civil status, where the renvoi – whether to Swiss law or to another law – must be observed in any case.

Finally, it must be noted that the Swiss PILA adopts a flexible approach regarding the designation of foreign law and favours the proximity principle over the strict observance of choice-of-law rules laid down in the Act. Indeed, art 15 provides for a general exception clause, which allows Swiss courts not to apply the law designated by the Swiss PILA, but instead the law which has a significantly closer connection. However, the requirements for application are demanding, in that a two-limb test needs to be met. First, a negative test is undertaken, which consists in verifying that the law designated by the choice-of-laws rule of the Swiss PILA has a demonstrably limited connection with the case, and, second, a positive test, whereby the courts check that another law has a closer connection to the case. Obviously, the exception clause cannot be used whenever the parties have chosen the applicable law and were entitled to do so (art 15(2) Swiss PILA).

b) Application of foreign law

As expressly provided by art 16, applying foreign law is mandatory rather than at the parties’ or the court’s option (→Optional (facultative) choice of law). This is the logical consequence of the mandatory application of the choice-of-law rules. However, art 16 introduces a distinction between pecuniary claims, for which the →burden of proof on the content of the foreign law may be imposed on the parties, and the non-pecuniary claim, where courts may request party assistance, but cannot solely rely on it. In that regard, the Swiss Institute for Comparative Law, located in Lausanne, is often referred to for opinions on foreign law and assists courts (and lawyers) in ascertaining the content of foreign law (available at <www.isdc.ch>). It should also be noted that Switzerland is party to the European Foreign Law Convention (European Convention of 7 June 1968 on information on foreign law, 720 UNTS 147). Otherwise, when a foreign law cannot be established, Swiss law will apply.

As common in other legal systems, the Swiss PILA is aimed at safeguarding its →public policy and the application of its →overriding mandatory provisions. Thus, on the one hand, art 17 precludes the application of foreign law provisions if it would produce a result that is incompatible with Swiss public policy. The risk of a manifest incompatibility with Swiss public policy is also a ground p. 1for refusing the recognition and enforcement of foreign decisions (art 27(1)). On the other hand, art 18 enables Swiss courts to apply mandatory provisions of Swiss law (lois de police), regardless of the law designated by the Swiss PILA. Moreover, art 19 offers the possibility, showing again the PILA’s flexible approach, to apply mandatory provisions of a foreign law which is not that designated by the Swiss PILA. The only requirement is that the situation dealt with has a close connection with this law. In that regard, the Swiss PILA is consistent with art 7 of the Rome Convention (Rome Convention on the law applicable to contractual obligations (consolidated version), [1998] OJ C 27/34), and thus now accepts a broader application of foreign mandatory provisions than was foreseen by the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)). However, the application of art 19 remains rather exceptional.

IV. Basic principles of private international law

1. Obligations – contracts

While Swiss private international law rules in relation to obligations are notably close to EU rules on private international law, certain differences remain. A significant difference concerns the recognition of foreign decisions in relation to obligations. Article 149 Swiss PILA deals with the conditions upon which a foreign decision is to be recognized, and essentially reflects the grounds of jurisdiction of Swiss courts in that matter. Nevertheless, in various cases the condition that the defendant should not be domiciled in Switzerland is required. This protects, albeit (potentially) excessively, parties domiciled in Switzerland against claims brought abroad.

a) Jurisdiction

Different forums are alternatively available for actions relating to a contract in Switzerland. First, the parties may agree upon the jurisdiction through a jurisdiction clause (art 5) or through implied consent (art 6). In the case of →consumer contracts, art 114 prohibits jurisdiction clauses that designate a forum other than that of the consumer’s domicile. Second, the forum of the defendant’s domicile (or, absent that, of the defendant’s habitual residence; →Domicile, habitual residence and establishment) is stipulated by art 112, which duplicates art 2 Swiss PILA. Third, when the characteristic obligation of the contract must be performed in Switzerland, the action may be brought before the Swiss court of the →place of performance (art 113).

It should be remembered that these Swiss PILA provisions will not be applied when the Lugano Convention is applicable, ie when the defendant is domiciled in Switzerland, in an EU Member State, or in Norway or Iceland. The Lugano Convention will also apply despite a jurisdiction clause if one party, whether the claimant or the defendant, has its domicile in one of these countries (art 23).

b) Choice of law

As in many other legal systems, contracts are governed by the law chosen by the parties (art 116). However, a →choice of law is not allowed in →consumer contracts (art 120(2)). Absent such a choice, the Swiss PILA codifies the principle developed by the Federal Tribunal (in a decision of 12 February 1952, Chevalley, ATF 78 II 74), according to which the contract is governed by the law of the domicile of the party obliged to perform the characteristic →contractual obligation (art 117). This seminal decision resulted in unification of the law applicable to the contract, since the previous rules submitted conclusion of the contract to the law of the place where the contract was concluded, whereas its effects were governed by the law of the state where the obligations had to be performed, potentially leading in turn to a multiplicity of designated laws. Article 117 is parallel to the rule adopted in the Rome Convention and hence in the Rome I Regulation. As a matter of fact, the concept of ‘characteristic obligation’ (die charakterische Leistung) is considered to be one of the major contributions of Swiss law to the theory of private international law and has influenced many legal systems, notably the Rome Convention (art 4 Rome Convention; Message of 10 November 1982 on a Federal Statute on Private International Law (FF 1983 I 255), 398). As far as sale of goods contracts are concerned, art 118 refers to the Hague Sales Convention (Hague Convention of 15 June 1955 on the law applicable to international sales of goods, 510 UNTS 147; →Sale contracts and sale of goods).

2. p. 1Obligations – torts

a) Jurisdiction

In addition to the forum of the defendant’s domicile in Switzerland stated in art 129(1) and the general rules on jurisdiction stated in the first chapter of the Swiss PILA, Swiss courts also have jurisdiction at the place where the act of tort or its consequences occurred, as well as the courts of the place of business in Switzerland (art 129(2)). Once again, the parallelism with EU private international law (to which the Lugano Convention somehow belongs, since Opinion 1/03 of the ECJ (European Court of Justice, 7 February 2006, Opinion 1/03)) should be noted (art 5(3) Lugano Convention), and the Federal Tribunal is indeed directly influenced by ECJ case-law in these matters.

b) Choice of law

The Swiss PILA has been influenced by the American conflict-of-laws ‘revolution’ (→(American) Conflict of laws revolution) whose critics focused essentially on the lex loci delicti rule. The lex loci delicti rule still exists, but has been relegated to the third rung of the scale. Indeed, the first rule set forth regarding the applicable law in tort actions is art 132, according to which: ‘Parties may, at any time after the damage occurred, agree to apply the law of the forum.’ The →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40), which authorizes a choice prior the occurrence of the damage, is more liberal. The second rule stipulated in art 133(1) implements the principle of proximity by stipulating that when the tortfeasor and the injured party have their habitual residence in the same state, claims in tort are governed by the law of such state. Failing a choice of Swiss law and a common habitual residence in the same state, the lex loci delicti applies (art 133(2)). However, the proximity principle reappears to oust this rule, when the tortfeasor and the injured party had already entered into a legal relationship (art 133(3)). These general choice-of-laws rules apply only when specific choice-of-laws rules, such as the rules in matter of road →traffic accidents or product liability, find no application.

3. Property

Property rights are governed by rules contained in Chapter 7 Swiss PILA and by the →Lugano Convention. Since the ratification of the Hague Securities Convention, a new Chapter 7a has been included in the Swiss PILA to deal with private international law issues on securities held with an intermediary. As in many legal systems, the leading principle regarding property rights is the →territoriality principle (→Immovable property; →Property and proprietary rights).

a) Jurisdiction

According to art 22(1) Lugano Convention, the courts at the situs have exclusive jurisdiction over disputes relating to real property rights. Article 97 Swiss PILA stipulates the same rule. However, the similarity between the Lugano Convention and the Swiss PILA ceases when it comes to movable property. Whereas the Lugano Convention does not provide for a specific ground of jurisdiction for actions related to movable property, art 98(2) Swiss PILA, in addition to the forum of the defendant’s domicile, stipulates a jurisdiction at the situs, although this only applies with regard to a defendant domiciled in a state that is not bound by the Lugano Convention. Regarding actions for recovery of cultural property, art 98a gives jurisdiction to the court of the defendant’s domicile or registered office and to the court where the cultural property is located. Swiss courts of the defendant’s domicile or, absent that, habitual residence have jurisdiction over actions regarding securities held with an intermediary (art 108b).

b) Choice of laws

The Swiss PILA adopts the lex rei sitae rule in art 99 for immovable property and art 100 for movable property. Article 100 is subject to various qualifications.

c) Recognition and enforcement

Decisions in relation to real property rights are to be recognized in Switzerland if they were rendered in the state in which the property is located or if they are recognized in such a state. As far as personal property rights are concerned, decisions are to be recognized if they are rendered in the state of the defendant’s domicile or if they were rendered in the state p. 1in which the property is located, provided that the defendant had its habitual residence there (art 108). Regarding the recognition of decisions related to actions for securities held with an intermediary, art 108d reflects the criteria of direct jurisdiction (the forum of the defendant’s domicile).

4. Intellectual property

Chapter 8 Swiss PILA is entirely dedicated to intellectual property rights.

a) Jurisdiction

According to art 109(1) Swiss PILA, Swiss courts have jurisdiction over claims arising out of the validity or registration in Switzerland of copyright, trade mark, patent or industrial design even in respect of a defendant domiciled abroad. In doing so, this provision reflects the exclusive character of the forum on the matters stipulated in art 22(4) Lugano Convention. In relation to intellectual property rights infringement, in addition to the domicile of the defendant in Switzerland stipulated by art 109(2) Swiss PILA (which is not operative as a rule of international jurisdiction because of art 2 of the Lugano Convention, but remains applicable to determine which tribunal within the Swiss territory has jurisdiction), this provision also gives jurisdiction to Swiss courts when the defendant has its habitual residence or place of business in Switzerland, or when the consequences of the infringement occurred in Switzerland. Needless to say, all these grounds in relation to intellectual property rights infringement only apply when the defendant is not domiciled in a contracting state of the Lugano Convention.

b) Choice of law

The main factor to determine the law applicable to property rights is the traditional principle of →territoriality, which establishes a parallelism between the forum and the jus. Thus, the general rule on the matter is that intellectual property rights are governed by the law of the state in which their protection is sought. Concerning claims arising out of intellectual property rights infringement, parties may agree upon parallelism after the act causing damage has occurred by choosing the law of the forum. Finally, the Swiss PILA deals with contractual aspects of intellectual property rights in Chapter 9 (Obligations). There, art 122 addresses contracts on intellectual property rights on the basis of the two general principles used by the Swiss PILA in matters of applicable law, party autonomy and characteristic performance. The place of characteristic performance is deemed to be located in the habitual residence of the party transferring or licensing the intellectual property right. Article 122 includes a specific provision providing for the application of the law applicable to employment contracts to the questions arising out of the creation of intellectual property rights by the employees in the course of their employment.

c) Recognition and enforcement

Indirect jurisdiction grounds for the recognition in Switzerland of foreign decisions in relation to intellectual property rights infringement are either the defendant’s domicile or the place where the act or the consequences of the infringement occurred, provided that the defendant is not domiciled in Switzerland. If the foreign decision relates to the validity or registration of intellectual property rights, it may only be recognized if it is rendered in the state under the law of which protection of the intellectual property is claimed or if it is recognized there (art 111 Swiss PILA).

5. Personal status and family matters

In relation to the status of natural persons (Chapter 2) and family law (Chapters 3, 3a, 4 and 5), the Swiss PILA is essentially based on the principle of domicile. In that area, rules on jurisdiction and choice-of-law rules have been particularly coordinated in order to favour the application of Swiss law by Swiss authorities. Switzerland has ratified numerous Hague Conventions concerning personal and family matters (→Hague Conference on Private International Law). Switzerland is also a member of the International Commission on Civil Status (ICCS) and has ratified eight of its conventions (see section I.2. above) (→CIEC/ICCS (International Commission on Civil Status)).

a) Jurisdiction

As far as questions of jurisdiction of judicial or administrative authorities are concerned, art 33 (in relation to the status of natural persons), arts 43 and 46 (matrimonial questions), and art 59 (in matters of divorce or separation; →Divorce and personal separation) give jurisdiction to the p. 1authorities of the domicile or, absent that, of the habitual residence. This criterion fulfils the double objective of the Swiss PILA to respect the equality of parties in matters of family law and to favour proximity. A supplemental but subsidiary forum is offered to Swiss citizens lacking domicile in Switzerland, which is the place of origin (arts 47, 60, 67 and 76). Swiss authorities have jurisdiction in such a case only if no other foreign authority has jurisdiction.

b) Choice of law

The same favour towards domicile (→Domicile, habitual residence and establishment) applies for the designation of the applicable law. The law applicable to the status of natural persons, capacity, the effects of →marriage, the creation, establishment and contest of a parent–child relationship, and the relations between parent and child is the law of the domicile or of the habitual residence for questions concerning the child directly. Absent a Swiss domicile or habitual residence in Switzerland, there are various solutions which involve either referring to the law with the closest link or to the law of the place of origin (in other words, →nationality), or both. In relation to the effects of marriage, art 48(2) provides that when the spouses are not domiciled in the same state, the effects of marriage are governed by the law of the state of the domicile with which the case has the closest connection. But when the Swiss judicial or administrative authorities at the place of origin have jurisdiction, such authorities must apply Swiss law. When both parties have a common nationality and no common domicile in Switzerland (or only one of the spouses has their domicile in Switzerland), the spouses’ common national law takes precedence (arts 54, 61(2) and 82(2)). In addition, parties are entitled to choose their national law in matters of name (art 37(2)) and the →matrimonial property regime (art 52). Finally, various choice-of-law rules are designed in an alternate way, designating the law of the domicile, the law of the habitual residence of the child or the law of the nationality in order to favour a specific result, ie the validity of the relationships (art 72(1)), or to protect a weaker party.

c) Recognition and enforcement

The first chapter of the Swiss PILA contains general rules regarding enforcement. One of the main requirements for a foreign decision to be recognized and enforced is that the foreign authority had jurisdiction according to Swiss private international law rules. In relation to the status of natural persons and family relationships, a foreign decision will be recognized if it was rendered either by the authority of the domicile or the habitual residence, or of the nationality of interested parties. Regarding the marriage of same-sex persons, which is not legal in Switzerland, the Act on Registered Partnership 2004 (RO 2005 5685) introduced a third paragraph to art 45, which states that ‘a marriage that was validly celebrated in a foreign country between persons of the same sex shall be recognized in Switzerland as a registered partnership’. The rule of recognition of decisions in relation to the matrimonial property regime is quite original, since it foresees the recognition of decisions rendered not only by the authorities of the domicile of the defendant spouse (or the plaintiff spouse as long as the defendant spouse was not domiciled in Switzerland), but also by the authorities of the state whose law was applicable according to the choice-of-law rule of the Swiss PILA or, in property matters, by the authority in which the real property was located (art 58(1)). Another peculiar rule that multiplies the possibility of recognition has been included in various articles in order to recognize foreign decisions if such decisions would be recognized in the state of domicile, habitual residence or nationality of parties (arts 58(1), 65(1) and 73(1)). Finally, pecuniary decisions may be recognized if the foreign authority had jurisdiction on the basis of a forum selection clause or when the defendant proceeded to the merits without objecting to jurisdiction (art 26 lit b and c).

6. Inheritance matters

The Swiss PILA aims at protecting the unity of the inheritance estate when it comes to the law of →succession. As a principle, when Swiss authorities have jurisdiction, they will rule on the entire estate, regardless of where the assets are located globally. The same law will be applied to immovable and movable property.

In a pragmatic way, jurisdiction and choice-of-law rules distinguish three situations: (i) the deceased had his or her last domicile in Switzerland; (ii) the deceased was a Swiss national domiciled in a foreign country at the time of his or her death; and (iii) the deceased neither had his or her last domicile in p. 1Switzerland nor was a Swiss national, but left property in Switzerland. It should be noted that since matrimonial property regimes are liquidated when one of the spouses dies, the rules of jurisdiction and →choice of law regarding that matter follow the rules established for succession. Apart from arts 86–96 Swiss PILA, which govern succession, the Hague Testamentary Dispositions Convention should be taken into account (art 93 Swiss PILA). Foreign decisions relating to an inheritance estate in a foreign country will be recognized in Switzerland when the foreign authority had jurisdiction in conformity with the grounds of jurisdiction foreseen in the PILA or if such decisions would be recognized in the countries which would have had jurisdiction according to Swiss PILA rules (art 96).

a) Last domicile of the deceased in Switzerland

In that case, Swiss authorities have jurisdiction to take the measures necessary to deal with the inheritance estate and to entertain disputes relating to it (art 86). They will do this according to Swiss law (art 90). However, art 86(2) limits the jurisdiction of Swiss authorities regarding immovable assets to those located in Switzerland. The Swiss PILA acknowledges that most legal systems provide for the exclusive jurisdiction of their authorities when it comes to immovable assets located in their territory.

b) A Swiss national with last domicile abroad

Given the fact that the last domicile of the deceased is a widespread criterion in comparative law, the succession of a Swiss national domiciled abroad will usually be dealt with by foreign authorities of the domicile. However, when this is not the case, art 87 gives jurisdiction to Swiss authorities ‘to the extent that the foreign authorities do not deal with such estate’. Jurisdiction to Swiss authority is also given when the deceased chose the jurisdiction of Swiss authority or the law of Switzerland to rule the estate located in Switzerland, a choice which is stipulated in art 90. Swiss law will then be applied, unless the deceased expressly provided by will or inheritance agreement for the application of the law of his or her last domicile (art 91(2)).

c) Property left in Switzerland

Article 88 provides that when property is left in Switzerland by a deceased who was not a Swiss national and who was domiciled abroad, then the Swiss judicial or administrative authorities at the place where such property is located have jurisdiction to deal with the portion of the estate located in Switzerland, but only to the extent that the foreign authorities do not deal with such portion of the estate. In such circumstances, the law applicable is determined by the law referred to by the private international law rules of the state in which the deceased was domiciled (art 91(1)). This is one of the hypotheses of →renvoi expressly set forth in the Swiss PILA.

7. Corporations

The rules of international jurisdiction concerning corporations are located in art 22 Lugano Convention and arts 150–153 Swiss PILA. The company’s registered office is particularly relevant, as is the law applicable to the company, which is determined by the law of the state under which the company is organized (art 154). The Swiss PILA is among the few legislative acts which contain specific provisions on transfer of seat, merger, division of →companies and transfer of assets (arts 161–165). They could serve as a model for the development of a private international law regime for corporations under EU law.

V. Arbitration

Traditionally, arbitration was a matter of cantonal procedural law. The Federal Tribunal classified the arbitral convention as a contract primarily of procedural rather than substantive private law. Subsequently, arbitration law was unified in Switzerland by the Swiss Intercantonal Arbitration Concordat of 27 March 1969 (RS 279, RO 1969 1117). This text was applied to international arbitration until the Swiss PILA, whose Chapter 12 is related to international arbitration, came into force on 1 January 1989.

According to art 176(1) Swiss PILA, an arbitration is international ‘if the seat of the arbitral tribunal is in Switzerland and if, at the time of the arbitration agreement, at least one of the parties had neither its domicile nor its habitual residence in Switzerland’. As to domestic arbitration, the Intercantonal Concordat was substituted by the Code of Civil Procedure (CPC, RS 272 RO 2010 1739), which entered into force on 1 January 2011 and contains a comprehensive regulation of p. 1arbitration in its part 3. Nowadays, this part 3 applies not only when arbitration fails to meet the requirements set out in art 176(1) Swiss PILA (art 353(1) CPC), but also if the parties so decide (art 176(2) Swiss PILA). Conversely, the parties may agree upon the application of Chapter 12 Swiss PILA to an arbitration in principle subject to the third part of the CPC (art 353(2) CPC).

It should be noted that although the Swiss PILA was adopted shortly after the UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17; →Arbitration (UNCITRAL) Model Law), Swiss international arbitration law retains its singularity. However, despite the differences, fundamental principles are common to both, in that the same →party autonomy is broadly recognized (which means that only a few rules have a mandatory character), and judicial intervention in arbitration is restricted to the few situations that have been specifically foreseen. Besides, the common principles of modern arbitration law (ie severability of the arbitral clause (art 178(3)), competence-competence (art 186(1) and the finality of the award (art 190(1)) are naturally incorporated into the Swiss PILA. The content of Chapter 12 of the Swiss PILA and the accompanying case-law of the Federal Tribunal have made Switzerland one of the most suitable seats for international arbitration. The New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3; in force since 30 August 1965 and replacing the 1923 Geneva Protocol on Arbitration Clauses (Protocol on Arbitration Clauses of 24 September 1923, 27 LNTS 157), and the League of Nations (Geneva) Convention on the Execution of Foreign Arbitral Awards, 1927 (Geneva Convention of 26 September 1927 on the Execution of Foreign Arbitral Awards, 92 LNTS 301 (also available at <http://interarb.com/vl/g_co1927>)) of 1927 on the Execution of Foreign Arbitral Awards by virtue of art VII(2) of the New York Convention) has also contributed to this situation. In fact, the New York Convention constitutes the general mechanism to enforce foreign arbitral awards in Switzerland because of its incorporation by reference into the Swiss PILA (art 194).

While the foregoing elements are common to many arbitration laws, other issues make Chapter 12 Swiss PILA special. The most singular of all characteristics of this chapter, even though it may be considered a simple question of methodology, is the concept of including the entire regulation of international arbitration within the framework of the general Act on private international law. As regards arbitrability, the scope of what is arbitrable is noticeably broad: ‘any dispute of financial interest’ is actually arbitrable in Switzerland (art 177(1)). Furthermore, public entities including the state cannot invoke their own law to contest either objective or subjective arbitrability (art 177(2)). Under certain conditions, a similar notion may be applied to a private entity (SFT, 31 March 2009, 4A_428/2008). Concerning the applicable law to the merits, absent a party choice, the Swiss PILA uses the singular (in this context) ‘closest connection’ approach (art 187(1)). Regarding the challenge of an award, the Swiss PILA restricts to an absolute minimum the grounds for annulment against awards rendered in Switzerland (art 190(2)). These grounds are: (i) improper appointment of the sole arbitrator or improper constitution of the arbitral tribunal; (ii) wrong acceptance of decline of jurisdiction by the arbitral tribunal; (iii) ultra petita or infra petita; (iv) violation of the principles of equal treatment or of the right to be heard (the Swiss Federal Tribunal has reduced the scope of this ground by requiring a totally clear prior invocation of the same ground before the arbitral tribunal; SFT, 20 February 2013, 4A_407/2012); or (v) incompatibility with public policy. Only grounds (i) and (ii) can be invoked to challenge a preliminary award (art 190(3)). The Swiss PILA reserves for the Federal Tribunal the jurisdiction for the setting aside of proceedings (art 191). Finally, the Swiss PILA allows parties not domiciled in Switzerland to expressly waive all or several of the grounds for annulment (art 192(1)). The Federal Tribunal has strictly construed the express character of the waiver. Thus, a clause providing merely that the award will be final does not constitute a valid waiver. The same applies to the commitment of the parties to respect and comply with the award (SFT, 10 October 2008, 4A_224/2008). Several of the specific aspects of Chapter 12 Swiss PILA have been adopted subsequently by other states.

Caroline Kleiner

p. 1Literature

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  • Alfred von Overbeck, ‘The Fate of Two Remarkable Provisions of the Swiss Statute of Private International Law’ (on art 15 and 19) (1999) 1 YbPIL 119.