No-Deal Brexit And Jurisdiction Issues—The Swiss Position

Author:Dr. Urs Feller, Marcel Frey and Michaela Kappeler
Profession:Prager Dreifuss
 
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Are you aware of any guidance published by the Swiss government, courts, bar or other authorities on the impact of a no-deal Brexit on civil justice matters involving UK parties? If so, please provide a copy or link.

No, there is no specific guidance available regarding civil justice matters involving UK parties. However, there is some guidance available, and some agreements have been signed between Switzerland and the UK, with regard to citizens' rights under the Agreement on the Free Movement of Persons (and after such Agreement ceases to be in force) and with respect to trade, road transport, air transport and insurance (under the umbrella of a 'Mind the gap' strategy and also in case of a no-deal scenario)

After exit day, what regime will the courts of Switzerland apply to jurisdiction clauses that give the English court jurisdiction? Is this different to the approach to jurisdiction clauses that give jurisdiction to courts in the US?

Switzerland is not a Member State of the EU. Therefore, the Lugano Convention on the jurisdiction and the recognition and enforcement of judgments in civil and commercial matters from 2007 (Lugano Convention) is currently applicable in most private law cases between Switzerland and EU Members States. Our current understanding is that after exit day the UK will cease to be a party to the Lugano Convention since the UK will no longer be a EU Member State. This results in the non-applicability of the Lugano Convention in the case of jurisdiction clauses that give the English court jurisdiction. Consequently, the courts of Switzerland will apply the Swiss Private International Law Act (PILA) in cases of an international context. Under PILA, art 5, parties can agree on jurisdiction over an existing or potential dispute concerning pecuniary claims arising from a particular legal relationship. Unless otherwise provided for by the jurisdiction clause, the court agreed upon has exclusive jurisdiction. This means that a Swiss court is not competent in the case of a valid jurisdiction clause that gives the English court jurisdiction unless the other party makes an appearance before the Swiss court without reservation. However, if proceedings concerning the same subject matter are already pending before an English court, the Swiss court has to stay the proceedings if there is an expectation that the...

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