SWITZERLAND Law and Practice Contributed by: Peter Ch Hsu, Daniel Flühmann and Tiffany Ender, Bär & Karrer
seq Lugano Convention). However, these provisions do not apply to reinsurance matters. The Lugano Con- vention provides, in particular, that the policyholder, insured or beneficiary may also sue an insurance undertaking domiciled in a contracting state in the courts in their own domicile. If the (defendant) insur- ance undertaking is not domiciled in a contracting state, a fiction of domicile is assumed nonetheless if a branch, agency or other establishment exists in the contracting state (Article 9 paragraph 2 Lugano Con- vention). A choice of forum is only possible to a limited extent – eg, only if the choice of forum was concluded after the dispute arose (Article 13 Lugano Convention). Swiss Private International Law Act In the context of a dispute that does not fall within the scope of the Lugano Convention, the general provi- sions of the Swiss Private International Law Act (PILA) apply. The jurisdiction pursuant to the PILA is deter- mined on the basis of the contractual agreement (Arti- cles 112 and 113 PILA) and choice of forum clauses are generally admissible (Article 5 PILA). However, if an insurance contract qualifies as a consumer con- tract pursuant to Article 120 PILA, the consumer can- not waive in advance the jurisdiction at their domicile of residence or usual place of residence (Article 114 paragraph 2 PILA). Choice of law When determining the choice of law in an international dispute, Swiss courts apply the PILA. Under the PILA, choice of law clauses are generally admissible (Arti- cle 116 PILA), if they are explicit or clearly evident from the contract or the circumstances. However, if an insurance contract qualifies as a consumer contract, choice of law clauses are inadmissible (Article 120 paragraph 2 PILA). 9.3 Litigation Process In principle, before the commencement of litigation proceedings, a conciliation proceeding ( Schlichtungs - verfahren ) has to take place (Article 197 et seq CPC). If no agreement can be reached during the conciliation proceeding, the conciliation authority grants authori- sation to proceed with litigation. Within three months, the plaintiff has to initiate proceedings before the ordi- nary court by filing the statement of claim (Articles 209 and 220 CPC). An exchange of written submissions
(Articles 221, 222 and 225 CPC) is in general followed by the main hearing, where the parties present their claims and legal arguments and evidence is taken (Article 228 et seq CPC). Afterwards, the court renders the final decision (Article 236 CPC). Against a final decision of the ordinary court, the los- ing party may file an appeal ( Berufung ) or an objection ( Beschwerde ) with the superior cantonal court, if the requirements for an appeal or objection, as applicable, are met. Final decisions of the superior cantonal court are, under certain conditions, subject to appeal before the Swiss Federal Supreme Court. Rules that differ from the procedure described above apply, in particular, to proceedings before a Commer- cial Court, where, inter alia, the plaintiff can file the lawsuit directly with the court (Article 199 paragraph 3 CPC) and – because it is the only cantonal court – the decision may only be appealed directly to the Swiss Federal Supreme Court. Further differences apply to, eg, disputes in simplified (Article 243 et seq CPC) or summary proceedings (Article 248 et seq CPC; as The enforcement procedure in Switzerland dif- fers depending on the type of judgment that is to be enforced: the enforcement of cash and surety payments is governed by the Swiss Federal Debt Enforcement and Bankruptcy Act (DEBA; Article 335 paragraph 2 CPC), while any other claims must be enforced in accordance with the CPC (Article 337 et seq CPC). In order to enforce claims under insurance contracts, which are typically cash payments, the creditor has to file an application for debt enforce- ment (Article 67 paragraph 1 DEBA) and take further steps under the DEBA. Enforcing Foreign Judgments Enforcement within the scope of the Lugano Convention With regard to the enforcement of foreign judgments, Switzerland is, inter alia, a contracting state of the Lugano Convention. Under the Lugano Convention, as a general principle, a judgment of a contracting state opposed to ordinary proceedings). 9.4 Enforcement of Judgments
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