Switzerland: Forum Running In The Area Of Action For A Negative Declaratory Judgement Finally Also A Valid Option For Plaintiffs In Switzerland

Last Updated: 16 April 2018
Article by Lucien W. Valloni

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions