Forum Running: New Swiss Leading Case
In a leading decision issued on March 14, 2018 (4A_417/2017 / BGE 144 III 175 ) the Swiss Federal Supreme Court considered Swatch Group AG’s interest in securing a Swiss forum in a dispute against an English counterparty as sufficient for the filing of a negative declaratory action in Switzerland. The court has thus changed its previous restrictive practice concerning the “running” towards a Swiss forum in international civil disputes.
(Potential) claimants who threaten to file a civil action against a Swiss defendant could – under the previous practice of the Swiss Federal Supreme Court – do so without the imminent risk that the Swiss counterparty could file a negative declaratory action in Switzerland to secure a Swiss forum. The reason was that Switzerland highest court considered negative declaratory claims as inadmissible if they were filed in the sole interest of forum running. This practice having changed with the latest decision, foreign claimants and their counsel may need to review their strategy in disputes against Swiss defendants. Defendants, on the other hand, may find in Switzerland an attractive place for blocking procedures at an unsuitable foreign forum.