Designing Cross-border Disputes: How Swiss Civil Procedure Enables Strategic Forum Planning

Switzerland has long been a preferred seat for international arbitration. Recent reforms to Swiss civil procedure now also strengthen its position as a forum for court litigation and encourage a shift from reactive forum shopping toward deliberate forum planning.

Key developments include the introduction of English-language proceedings in international commercial cases and a more flexible approach by the Swiss Supreme Court to negative declaratory actions in international disputes. Together, these developments enhance parties' abilities to manage cross-border litigation risk proactively.

International commercial courts and English-language proceedings

The revised Swiss Civil Procedure Code (CPC), in force since 01 January 2025, aims to modernise and strengthen commercial courts. Under Art. 6 CPC, cantons may establish commercial courts with jurisdiction over international commercial litigation cases, subject to statutory requirements such as a minimum amount in dispute, a jurisdiction agreement, and an international element. Art. 129 CPC further allows cantonal law to permit conducting proceedings in English at the parties' request.

In this context, the canton of Zurich has announced the creation of an International Commercial Court (ZICC), expected to become operational in 2027. These developments respond to the practical needs of international business by combining procedural efficiency with increased accessibility in complex cross-border litigation.

The procedural tool of pre-emptive declaratory actions

Swiss civil procedure also provides mechanisms that may be deployed strategically in cross-border disputes. Of particular relevance is the action for a negative declaratory judgment. Such actions allow a party, under certain conditions, to seek a judicial declaration of non-liability where foreign proceedings are reasonably anticipated.

While earlier case law was restrictive, the Swiss Supreme Court has overturned its precedents in recent years, holding that the interest in stabilising jurisdiction may constitute a legitimate interest for such actions in international cases. This development enhances predictability for parties considering Switzerland as a litigation forum, and can help mitigate the risk of parallel proceedings or tactical "torpedo" actions abroad.

Forum planning as risk management

Effective forum planning begins at the contract drafting stage. Choice of law and jurisdiction clauses must align with Swiss private international law, including the Lugano Convention and the Hague Choice of Court Convention. Early involvement of local counsel is therefore essential.

Forum selection should not be treated as an afterthought, but as a core risk management decision. Addressed early, it preserves procedural flexibility and legal certainty, and can significantly reduce the cost and complexity of cross-border disputes over the life of a commercial contract.

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.