瑞士民法典

Switzerland's Federal Codeon Private International Law1(CPIL)of December 18, 19872UMBRICHTATTORNEYS AT LE OF

CONTENTSArticleChapter 1: Provisions in CommonSection 1: Scope

Section 2: JurisdictionSection 3: Applicable LawSection 4: Domicile, Residence, and CitizenshipSection 5: Recognition and Enforcement of Foreign Decisions1 32-1213-1920-2425-323689PageChapter 2: Natural Persons33-4212Chapter 3: Matrimonial LawSection 1: Celebration of MarriageSection 2: Effects of Marriage in GeneralSection 3: Matrimonial Property RegimesSection 4: Divorce and Separation43-4546-5051-5859-65141516191

Authoritative private translation ot the official text by UMBRICHT Attorneys, Switzerland,as amended as of January 1, 2002.© by Dr. Robert P. Umbricht, LL.M., Suggested citation: Swiss CPIL, Umbricht Attorneys, Switzerland (2002).2

Chapter 4: Parent-child relationshipSection 1: The establishment of a parent-child relationship by descent66-70Section 2: Acknowledgment71-74Section 3: Adoption75-78Section 4: Effects of parent-child relationship79-84Chapter 5: Guardianship and Other Protective Measures85Chapter 6: Inheritance86-96Chapter 7: Property97-108Chapter 8: Intellectual Property Rights109-111Chapter 9: Law of ObligationsSection 1: Contracts112-126Section 2: Unjust Enrichment127-128Section 3: Torts129-142Section 4: Provisions in Common143-148Section 5: Foreign Decisions149Chapter 10: Company Law150-165Chapter 11: Bankruptcy and Composition Agreements166-175Chapter 12: International Arbitration176-194Chapter 13: Final ProvisionsSection 1: Repeal and Amendment of Federal Law Currently in Force195Section 2: Transitional Provisions196-199Section 3: Referendum and Effective Date22735465154606061

UMBRICHT3 ATTORNEYS AT LAWThe Federal Assembly of the Swiss Confederation,based on the authority of the Confederation in matters of foreign relations and on Article 64of the Federal Constitution;and in consideration of the message of the Federal Council, dated November 10, 19823,enacts:Chapter 1: Provisions in CommonSection 1: ScopeArt. 11

This Code governs, in an international context:a. The jurisdiction of the Swiss judicial and administrative authorities;b. The applicable law;c. The conditions for the recognition and enforcement of foreign decisions;d. Bankruptcy and composition agreements;e. Arbitration.2 International treaties take n 2: JurisdictionArt. 2I. In generalUnless this Code provides otherwise, the Swiss judicial or administrative authorities at thedomicile of the defendant shall have jurisdiction.3

BBl. 1983 I 263.

UMBRICHT4 ATTORNEYS AT LAWArt. 3II. Emergency jurisdictionIf this Code does not provide for jurisdiction in Switzerland and if proceedings abroad areimpossible or cannot reasonably be required to be brought, the Swiss judicial or administra-tive authorities at the place with which the facts of the case are sufficiently connected shallhave . 4III. Validation of attachmentIf this Code does not provide for any other jurisdiction in Switzerland, an action to validate anattachment may be brought at the place in Switzerland where the attachment was . 5IV. Agreed venue1

The parties may agree on a venue for an existing or a future dispute concerning pecuniaryclaims arising from a specified legal relationship. The agreement may be made in writing, bytelegram, telex, telecopier, or by any other means of communication which evidences theterms of the agreement by a text. Unless stipulated otherwise, the court agreed upon shallhave exclusive jurisdiction.2

The agreement on venue shall be void if one party is denied in an improper manner a venueto which that party is entitled under Swiss law.3

The court agreed upon may not decline its jurisdiction:a. If one party has his domicile, place of habitual residence, or place of business in the can-ton of the Swiss court agreed upon; orb. If, pursuant to this Code, Swiss law is applicable to the . 6V. Appearance by the defendantIn the case of pecuniary claims, the court before which the action is brought shall have juris-diction if the defendant proceeds to the merits without contesting the court’s jurisdiction un-less the court may decline jurisdiction pursuant to Article 5, paragraph 3.

UMBRICHT5 ATTORNEYS AT LAWArt. 7VI. Arbitration agreementIf the parties have concluded an arbitration agreement with respect to an arbitrable dispute,the Swiss court before which the action is brought shall decline its jurisdiction unless:a. The defendant proceeded to the merits without contesting jurisdiction;b. The court finds that the arbitration agreement is null and void, inoperative or incapable ofbeing performed; orc. The arbitral tribunal cannot be constituted for reasons for which the defendant in the arbi-tration proceeding is manifestly . 8VII. Counter-claimThe court in which the principal claim is pending shall also decide a counter-claim if there isa factual connection between the claim and the . 9VIII. Lis pendens1

If the same parties are engaged in proceedings abroad based on the same causes of action,the Swiss court shall stay the proceeding if it may be expected that the foreign court will,within a reasonable time, render a decision that will be recognizable in Switzerland.2

To determine when a court in Switzerland is seized, the date of the first act necessary to in-stitute the action shall be decisive. The initiation of conciliation proceedings shall suffice.3

The Swiss court shall dismiss the action as soon as a foreign decision is submitted to itwhich can be recognized in . 10IX. Provisional measuresThe Swiss judicial or administrative authorities may enter provisional measures even if theydo not have jurisdiction on the merits.

UMBRICHT6 ATTORNEYS AT LAWArt. 11X. Judicial assistance1

Acts of judicial assistance shall be implemented in Switzerland according to the law of thecanton in which they are petition of the requesting authority, foreign legal procedure may also be observed ortaken into account, if necessary, for the enforcement of a claim abroad unless there are im-portant reasons pertaining to the affected party not to do so.3

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The Swiss judicial or administrative authorities may issue documents or take an affidavitfrom an applicant in accordance with a form of foreign law if the Swiss form is not recog-nized abroad and if a claim meriting protection could not be asserted . 12XI. Time limitsIf a person abroad is required to meet a time limit before Swiss judicial or administrativeauthorities, it is sufficient that the filing is made with a diplomatic or consular representativeof Switzerland by the last day of the allotted time n 3: Applicable LawArt. 13I. Scope of referenceThe reference in this Code to a foreign law includes all provisions applicable to the facts ofthe case under that law. The application of a provision of foreign law is not precluded solelybecause the provision is attributed the character of public . 14II. Renvoi1

If the applicable law refers back to Swiss law or onwards to another foreign law, that refer-ence shall be observed only if this Code so provides.2

In matters of civil status, reference back to Swiss law by a foreign law must be observed.

UMBRICHT7 ATTORNEYS AT LAWArt. 15III. Exception clause1 The law designated by this Code shall not be applied in those exceptional situations where,in light of all circumstances, it is manifest that the case has only a very limited connectionwith that law and has a much closer connection with another law.2 This article is not applicable in the case of a choice of law by the . 16IV. Establishment of foreign lawThe content of the applicable foreign law shall be established ex officio. The assistance ofthe parties may be requested. In the case of pecuniary claims, the burden of proof on the con-tent of the foreign law may be imposed on the parties.2

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Swiss law shall apply if the content of the foreign law cannot be . 17V. Public policy (ordre public)The application of provisions of foreign law shall be precluded if it would produce a resultwhich is incompatible with Swiss public policy (ordre public).Art. 18VI. Mandatory application of Swiss lawThis Code does not prevent the application of those mandatory provisions of Swiss lawwhich, by reason of their particular purpose, are applicable regardless of the law designatedby this . 19VII. Taking into account of mandatory provisions of foreign law1

If, pursuant to Swiss legal concepts, the legitimate and manifestly preponderant interests of aparty so require, a mandatory provision of a law other than that designated by this Code maybe taken into account if the circumstances of the case are closely connected with that law.

UMBRICHT8 ATTORNEYS AT LAW2

In deciding whether such a provision must be taken into account, its purpose is to be consid-ered as well as whether its application would result in an adequate decision under Swiss con-cepts of n 4: Domicile, Residence, and CitizenshipArt. 20I. Domicile, habitual residence, and place of business of a natural person1

For the purposes of this Code, a natural person:a. Has his domicile in the State in which he resides with the intention to remain perma-nently;b. Has his place of habitual residence in the State in which he lives for an extended period oftime, even if this time period is limited from the outset;c. Has his place of business in the State in which his professional of business activities person can have more than domicile at the same time. If a person has no domicile, theplace of his habitual residence shall be determinative. The provisions of the Civil Code re-garding domicile and residence shall not be . 21II. Corporate domicile and place of business1

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In the case of companies, the registered office shall be deemed to be the registered office of a company is the place specified in the certificate of incorporation orthe deed of partnership. In the absence of such designation, the registered office of the com-pany shall be the place where it is administered in fact.3

The place of business of a company shall be in the State in which it has its registered officeor a . 22III. CitizenshipThe citizenship of a natural person shall be determined by the law of the State of the citizen-ship in question.

UMBRICHT9 ATTORNEYS AT LAWArt. 23IV. Multiple CitizenshipIf a person is a citizen of one or more States to Switzerland, Swiss citizenship shall be de-terminative for purposes of jurisdiction based on citizenship.2

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If a person is a citizen of several States, the citizenship of the State with which the person ismost closely connected shall be determinative for purposes of the applicable law unless thisCode provides otherwise.3

If the recognition of a foreign decision in Switzerland depends upon the citizenship of a per-son, it is sufficient to consider one of his . 24V. Stateless persons and refugees1

A person shall be regarded as stateless if he is recognized as such under the New York Con-vention of September 28, 19544 on the legal Status of Stateless Persons or if his relationshipwith the State of his citizenship has become so attenuated as to be equivalent to statelessness.2

A person shall be regarded as a refugee if he is recognized as such under the Statute of Asy-lum of October 5, 19795.3

If this Code is applied to stateless persons or refugees, domicile shall replace n 5: Recognition and Enforcement of Foreign DecisionsArt. 25I. Recognition1. General ruleA foreign decision shall be recognized in Switzerland:a. If the judicial or administrative authorities of the State in which the decision was renderedhad jurisdiction;b. If no ordinary appeal can be lodged against the decision or the decision is final; andc. If there are no grounds for refusal under Article 27.

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SR 0.142.40SR 142.31

UMBRICHT10 ATTORNEYS AT LAWArt. 262. Jurisdiction of foreign authoritiesThe foreign authorities have jurisdiction:a. If a provision of this Code so provides or, in the absence of such a provision, the defen-dant was domiciled in the State in which the decision was rendered;b. If, in the case of pecuniary claims, the parties have submitted by an agreement valid underthis Code to the jurisdiction of the authority that rendered the decision;c. If, in the case of pecuniary claims, the defendant proceeded to the merits without object-ing to jurisdiction; ord. If, in the case of a counter-claim, the authority which rendered the decision had jurisdic-tion over the principal claim and there is a factual connection between the principal claimand the . 273. Grounds for refusal1

A foreign decision shall not be recognized in Switzerland if such recognition would be mani-festly incompatible with Swiss public policy (ordre public).2

A foreign decision shall likewise not be recognized if a party establishes:a. That he was not duly summoned, either according to the law of his domicile or accordingto the law of his place of habitual residence unless he had proceeded to the merits withoutcontesting jurisdiction;b. That the decision was rendered in violation of fundamental principles of Swiss procedurallaw, in particular that he was denied the right to be heard;c. That a lawsuit between the same parties and concerning the same causes of action hadalready been brought or decided in Switzerland or that the lawsuit had proceeded to judg-ment in a third State and that judgment can be recognized in Switzerland.3

Except as herein provided, the foreign decision is not subject to review on the . 28II. EnforcementA decision recognized under Articles 25 to 27 shall be declared enforceable upon applicationby the interested party.

UMBRICHT11 ATTORNEYS AT LAWArt. 29III. ProcedureThe application for recognition or enforcement must be submitted to the authority havingjurisdiction in the canton in which the foreign decision is to be invoked. It must be accompa-nied by:a. A complete and authenticated copy of the decision;b. A confirmation that no ordinary appeal can be lodged against the decision or that it is fi-nal; andc. In the case of a judgment rendered by default, an official document establishing that thedefaulting party was duly summoned and that he had the opportunity to enter a defense.2

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The party opposing recognition and enforcement shall have the right to a hearing; he mayintroduce evidence.3

If a foreign decision is invoked in a proceeding as a preliminary question, the authority towhich the application is submitted may itself rule on the . 30IV. Court settlementArticles 25 to 29 shall apply to a court settlement having the same status as a court decision inthe State in which it was . 31V. Non-contentious jurisdictionArticles 25 to 29 shall apply by analogy to the recognition and enforcement of a decision or alegal instrument resulting from non-contentious . 32VI. Entry in the register of births, deaths, and marriages1

A foreign decision or a foreign act regarding civil status shall be entered in the register ofbirths, deaths, and marriages pursuant to an order of the cantonal supervisory authority.2

The entry shall be authorized when the requirements of Articles 25 to 27 are satisfied.

UMBRICHT12 ATTORNEYS AT LAWThe persons affected shall have the right to a hearing before the entry is made if it is not es-tablished that in the foreign State where the decision was rendered, the procedural rights ofthe parties were adequately safeguarded.3

Chapter 2: Natural PersonsArt. 33I. General rule1

Unless this Code provides otherwise, the Swiss judicial or administrative authorities at thedomicile shall have jurisdiction in matters of status of natural persons; they shall apply thelaw in force at the domicile.2

Claims arising from the infringement of personality rights shall be determined according tothe provisions of this Code concerning torts (Art. 129 et seq.).Art. 34II. Legal capacity1

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Legal capacity shall be governed by Swiss beginning and termination of legal personality shall be governed by the law applicableto the legal relationship which presupposes legal . 35III. Capacity to act1. General ruleThe capacity to act shall be governed by the law of the domicile. A change of domicile shallnot affect the capacity to act once that capacity has been . 362. Estoppel1

A party to a legal transaction who lacks capacity under the law of the State of his domicilemay not invoke that incapacity if he had capacity under the law of the State in which thetransaction was accomplished unless the other party knew or should have known of that inca-pacity.2

This rule is inapplicable to legal transactions concerning family law, the law of inheritance,or real property rights.

UMBRICHT13 ATTORNEYS AT LAWArt. 37IV. Name1. General rule1

The name of a person domiciled in Switzerland shall be governed by Swiss law. The nameof a person domiciled abroad shall be governed by the law designated by the private interna-tional law of the State of his domicile.2

A person may request, however, that his name be governed by the law of the State of . 382. Change of name1

The Swiss authorities at the domicile of the applicant shall have jurisdiction over a petitionto change his name.2

A Swiss citizen without a Swiss domicile may file a petition for a change of name with theauthorities of the canton of his citizenship.3

The conditions and effects of a change of name shall be governed by Swiss . 393. Change of name entered abroadA change of name entered abroad shall be recognized in Switzerland if it is valid in the Stateof domicile or in the State of citizenship of the . 404. Entry in the register of births, deaths, and marriagesThe name shall be entered in the register of births, deaths, and marriages in accordance withSwiss registration . 41V. Declaration of disappearance1. Jurisdiction and applicable law1

The Swiss courts at the last known domicile of a missing person shall have jurisdiction toenter a declaration of disappearance.2

The Swiss courts shall also have jurisdiction to enter a declaration of disappearance if a le-gitimate interest justifies it.

UMBRICHT14 ATTORNEYS AT LAW3

The conditions and effects of the declaration of disappearance shall be governed by . 422. Declaration of disappearance and death issued abroadA declaration of disappearance or death issued abroad shall be recognized in Switzerland if itwas entered in the State of the last known domicile or the State of citizenship of the personwho has r 3: Matrimonial LawSection 1: Celebration of MarriageArt. 43I. Jurisdiction1

Swiss authorities shall have jurisdiction to perform the celebration of marriage if either thebride or the bridegroom is domiciled in Switzerland or is a Swiss citizen.2

Foreign couples without Swiss domicile may also be permitted to marry in Switzerland bythe authority with the jurisdiction if the marriage is recognized in the State of domicile or citi-zenship of both the bride and bridegroom.3

Permission may not be refused solely because a divorce granted or recognized in Switzer-land is not recognized . 44II. Applicable law1

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The substantive conditions for marriage in Switzerland shall be governed by Swiss the conditions under Swiss law are not satisfied, a marriage between foreigners may nev-ertheless be performed if the conditions of the law of the State of citizenship of either thebride or the bridegroom are satisfied.3

The form of the celebration of marriage in Switzerland shall be governed by Swiss . 45III. Marriage celebrated abroad1

A marriage validly celebrated abroad shall be recognized in Switzerland.

UMBRICHT15 ATTORNEYS AT LAW2

If the bride or the bridegroom is a Swiss citizen or if both are domiciled in Switzerland, themarriage performed abroad shall be recognized unless the marriage ceremony was performedabroad with the manifest purpose of circumventing the provisions of Swiss law concerningthe nullity of . 45aIV. MajorityMinors domiciled in Switzerland shall attain their majority upon the celebration of a marriagein Switzerland or the recognition of a marriage celebrated abroad.6Section 2: Effects of Marriage in GeneralArt. 46I. Jurisdiction1. General ruleThe Swiss judicial or administrative authorities at the domicile or, in the absence of domicile,those at the place of habitual residence of one of the spouses shall have jurisdiction over ac-tions or to order measures concerning the effects of . 472. Jurisdiction for Swiss citizensIf the spouses are neither domiciled nor habitually resident in Switzerland and if one of themis a Swiss citizen, the judicial or administrative authorities at the place of Swiss citizenshipshall have jurisdiction over actions or to order measures regarding the effects of marriage ifthe action or request cannot be brought at the domicile or place of habitual residence of one ofthe spouses or if it is unreasonable to so . 48II. Applicable law1. General rule1 The effects of marriage shall be governed by the law of the State in which the spouses aredomiciled.

6Introduced through Clause 2 of the Annex to the Federal Statute dated October 7, 1994, in force sinceJanuary 1, 1996.

UMBRICHT16 ATTORNEYS AT LAW2 If the spouses are not domiciled in the same State, the effects of marriage shall be governedby the law of the State of the domicile with which the facts of the case are more closely con-nected.3 If the Swiss judicial or administrative authorities at the place of citizenship have jurisdictionunder Article 47, they shall apply Swiss . 492. Maintenance obligationsMaintenance obligations between spouses shall be governed by The Hague Convention ofOctober 2, 19737 on the Law Applicable to Maintenance . 50III. Foreign decisions or measuresForeign decisions or measures concerning the effects of marriage shall be recognized in Swit-zerland if they were rendered in the State of domicile or habitual residence of one of n 3: Matrimonial Property RegimesArt. 51I. JurisdictionThe following authorities shall have jurisdiction over actions or to order measures concerningthe matrimonial property regimes:a. In the event of the dissolution of the matrimonial property regime because of the death ofone of the spouses, the Swiss judicial or administrative authorities having jurisdiction overthe estate (Art. 86 to 89);b. In the event of the dissolution of the matrimonial property regime because of judicial dis-solution or separation of the marriage, the Swiss courts having jurisdiction thereover (Art.59, 60, 63 and 64);c. In all other cases, the Swiss judicial or administrative authorities with jurisdiction overactions or measures concerning the effects of marriage (Art. 46, 47).

7 SR 0.211.213.01

UMBRICHT17 ATTORNEYS AT LAWArt. 52II. Applicable law1. Choice of law by the spousesa. General rule1

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The matrimonial property regime shall be governed by the law chosen by the spouses may choose the law of the State in which they are both domiciled or will bedomiciled following the marriage ceremony or the law of the State of which one of thespouses is a citizen. Article 23, paragraph 2, shall not be . 53b. Form and effectsThe choice of law must be agreed in writing or be clearly evident from the marital agree-ment. Aside from that requirement, it shall be governed by the chosen law.2

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The choice of law may be made or changed at any time. If the choice is made following thecelebration of marriage, it shall take effect retroactive to the date of the marriage unless theparties agree otherwise.3

The chosen law shall remain applicable until the spouses choose another law or revoke . 542. Absence of a choice of lawa. General rule1

In the absence of a choice of law, the matrimonial property regime shall be governed by:a. The law of the State in which both spouses are domiciled simultaneously or, if this is notthe case,b. The law of the State in which both spouses were last domiciled simultaneously.2

If the spouses were never domiciled in the same State simultaneously, the law of their com-mon State of Citizenship shall be applicable.3

Spouses who were never domiciled in the same State simultaneously and who do not have acommon citizenship shall be subject to the Swiss regime of separate property.

UMBRICHT18 ATTORNEYS AT LAWArt. 55b. Alteration and retroactive effect in case of change of domicile1 If the spouses transfer their domicile from one State to another, the law of the new domicileshall be applicable with retroactive effect from the date of the marriage. The spouses maypreclude the retroactive effect by written agreement.2 The change of domicile shall have no effect on the applicable law if the parties have agreedin writing to maintain the former law or if they are subject to a marriage . 563. Form of marital agreementThe marital agreement shall be valid as to form if it conforms to the law applicable to themarital agreement or to the law at the place of its . 574. Effects on third parties1

The effects of the matrimonial property regime on the legal relationship between a spouseand a third party shall be governed by the law of the State in which the spouse was domiciledwhen the legal relationship commenced.2

If, however, the third party knew or should have known the law that governed the matrimo-nial property regime when the legal relationship commenced, that law shall be . 58III. Foreign decisions1

Foreign decisions concerning the matrimonial property regime shall be recognized in Swit-zerland:a. If they were rendered or are recognized in the State of domicile of the defendant spouse;b. If they were rendered or are recognized in the State of domicile of the plaintiff spouse,provided that the defendant spouse was not domiciled in Switzerland;c. If they were rendered or are recognized in the State whose law is applicable to the matri-monial property regime under this Code; ord. In matters related to real property if they were rendered or are recognized in the State inwhich the real property is located.

UMBRICHT19 ATTORNEYS AT LAWThe recognition of decisions concerning the matrimonial property regime rendered in con-nection with measures protecting the marital union or following the death of one of thespouses, a declaration of nullity of the marriage, a divorce, or a separation shall be governedby the provisions of this Code relating to the effects of marriage, divorce, or inheritance (Art.50, 65 and 96).2

Section 4: Divorce and SeparationArt. 59I. Jurisdiction1. General ruleThe following authorities shall have jurisdiction over actions of divorce or separation:a. The Swiss courts at the defendant’s domicile;b. The Swiss courts at the plaintiff’s domicile if he has resided in Switzerland for one year oris a Swiss . 602. Jurisdiction for Swiss citizensIf the spouses are not domiciled in Switzerland and if one of them is a Swiss citizen, thecourts at the place of Swiss citizenship shall have jurisdiction over an action of divorce orseparation if the action cannot be brought at the domicile of one of the spouses or if it is un-reasonable to so . 61II. Applicable law1

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Divorce and separation shall be governed by Swiss , however, both spouses have the same foreign citizenship and only one is domiciled inSwitzerland, the law of the State of their common citizenship shall be applicable.3

If the law of the State of common citizenship does not permit the dissolution of the marriageor imposes extraordinary severe conditions, Swiss law shall be applicable if one of thespouses is also a Swiss citizen or one of the spouses has resided in Switzerland for the twoyears immediately preceding.4

If the courts at the place of Swiss citizenship have jurisdiction pursuant to Article 60, theyshall apply Swiss law.

UMBRICHT20 ATTORNEYS AT LAWArt. 62III. Provisional measuresThe Swiss court in which an action for divorce or separation is pending shall have jurisdic-tion to enter provisional measures unless its lack of jurisdiction on the merits is manifest orhas been decided in a final judgment.2

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Provisional measures shall be governed by Swiss provisions of this Code concerning maintenance obligations between spouses (Art. 49),the effects of parent-child relationship (Art. 82 and 83), and the protection of minors (Art. 85)take . 63IV. Ancillary effects1

The Swiss law courts with jurisdiction over an action of divorce or separation shall also havejurisdiction over all matters ancillary to the divorce or separation.2

The law applicable to the divorce or separation shall govern the ancillary effects of divorceand separation. The provisions of this Code concerning names (Art. 37 to 40), maintenanceobligations between spouses (Art. 49), the matrimonial property regime (Art. 52 to 57), theeffects of parent-child relationship (Art. 82 and 83), and the protection of minors (Art. 85)take . 64V. Amendments or modifications of a decision1

Swiss courts shall have jurisdiction over an action to amend or modify a decision of divorceor separation if they entered the decision or have jurisdiction under Art. 59 or 60. The provi-sions of this Code concerning the protection of minors (Art. 85) take precedence.2

An action to amend or modify a decision of divorce or separation shall be governed by thelaw applicable to the divorce or separation. The provisions of this Code concerning names(Art. 37 to 40), maintenance obligations between spouses (Art. 49), the matrimonial propertyregime (Art. 52 to 57), the effects of parent-child relationship (Art. 82 and 83), and the pro-tection of minors (Art. 85) take precedence.

UMBRICHT21 ATTORNEYS AT LAWArt. 65VI. Foreign decisions1

Foreign decisions of divorce or separation shall be recognized in Switzerland if they wererendered in the State of domicile or habitual residence or in the State of citizenship of onespouse or if they are recognized in one of those States.2

However, a decision rendered in a State of which neither spouse, or only the plaintiff spouse,is a citizen shall be recognized in Switzerland only:a. If, at the time the petition was filed, at least one spouse was domiciled or had his place ofhabitual residence in that State and the defendant spouse was not domiciled in Switzer-land;b. If the defendant spouse has submitted to the jurisdiction of the foreign court without res-ervation; orc. If the defendant spouse has expressly consented to the recognition of the decision in r 4: Parent-child relationshipSection 1: The establishment of a parent-child relationship by descentArt. 66I. Jurisdiction1. General ruleThe Swiss courts at the place of habitual residence of the child or at the domicile of themother or the father shall have jurisdiction over actions to establish or contest a . 672. Jurisdiction for Swiss citizensIf the parents are not domiciled in Switzerland and the child is not habitually resident in Swit-zerland, the courts at the place of Swiss citizenship of the mother or the father shall have ju-risdiction over actions to establish or contest a parent-child relationship if the action cannot bebrought at the domicile of one of the parents or at the place of habitual residence of the childor if it is unreasonable to so require.

UMBRICHT22 ATTORNEYS AT LAWArt. 68II. Applicable law1. General rule1

The creation, establishment, and contest of a parent-child relationship shall be governed bythe law of the State of the habitual residence of the child.2

If, however, neither the father nor the mother is domiciled in the State of habitual residenceof the child and if the child and the parents are citizens of the same State, the law of that Stateshall be . 692. Time of determination1

The law applicable to the creation, establishment, or contest of a parent-child relationshipshall be determined as of the date of r, in the case of judicial establishment or judicial contest of a parent-child relation-ship, the date of the commencement of an action shall be determinative if a preponderant in-terest of the child so . 70III. Foreign decisions2

Foreign decisions concerning the establishment or the contest of a parent-child relationshipshall be recognized in Switzerland if they were rendered in the State of habitual residence orcitizenship of the child or in the State of domicile or citizenship of the mother or the n 2:AcknowledgmentArt. 71I. Jurisdiction1

The Swiss authorities at the place of birth or habitual residence of the child as well as theauthorities at the place of domicile or citizenship of the mother or the father shall have juris-diction to receive an act of acknowledgment of a parent-child relationship.2

In the case of a judicial proceeding in which a parent-child relationship is relevant, the judgehearing the action may receive an act of acknowledgment.3

The same courts that have jurisdiction over the establishment or contest of a parent-childrelationship (Art. 66 and 67) shall have jurisdiction over the contest of an acknowledgment.

UMBRICHT23 ATTORNEYS AT LAWArt. 72II. Applicable law1

Acknowledgment in Switzerland may be effected in accordance with the law of the State ofhabitual residence or citizenship of the child or the law of the State of domicile or citizenshipof the mother or the father. The date of acknowledgment is determinative.2

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The form of acknowledgment in Switzerland shall be governed by Swiss contest of an acknowledgment shall be governed by Swiss . 73III. Foreign acknowledgment and contest of acknowledgment1

An act of acknowledgment of a child made abroad shall be recognized in Switzerland if it isvalid in the State of habitual residence of citizenship of the child or in the State of domicile orcitizenship of the mother or the father.2

Foreign decisions concerning the contest of acknowledgment shall be recognized in Swit-zerland when they are rendered in one of the States set forth in paragraph . 74IV. LegitimationArticle 73 shall apply by analogy to a foreign n 3: AdoptionArt. 75I. Jurisdiction1. General rule1

The Swiss judicial or administrative authorities at the domicile of the adopting person or theadopting spouses shall have jurisdiction to grant the adoption.2

The same courts that have jurisdiction over the establishment or contest of a parent-childrelationship (Art. 66 and 67) shall have jurisdiction over the contest of adoption.

UMBRICHT24 ATTORNEYS AT LAWArt. 762. Jurisdiction for Swiss citizensIf the adopting person or the adopting spouses are not domiciled in Switzerland and if one ofthem is a Swiss citizen, the judicial or administrative authorities at the place of Swiss citizen-ship shall have jurisdiction to grant the adoption if it is impossible or unreasonable to requirethat the adoption procedure be conducted at their foreign . 77II. Applicable law1

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The conditions for adoption in Switzerland shall be governed by Swiss it becomes apparent that an adoption would not be recognized in the State of domicile orcitizenship of the adopting person or the adopting spouses and the child would be severelyprejudiced, the authorities may shall also take into account the requirements of the law of theState in question. If the recognition of the adoption remains uncertain, the adoption shall notbe granted.3

An action to annul an adoption pronounced in Switzerland shall be governed by Swiss adoption pronounced abroad may only be annulled in Switzerland if there are grounds fordoing so under Swiss . 78III. Foreign adoptions and similar acts1 Adoptions pronounced abroad shall be recognized in Switzerland if they were pronouncedin the State of domicile or citizenship of the adopting person or the adopting spouses.2 Adoptions or similar acts under foreign law which have effects essentially different from aparent-child relationship under Swiss Law shall only be recognized in Switzerland with theeffects that attach to them in the State in which such acts were n 4: Effects of parent-child relationshipArt. 79I. Jurisdiction1. General rule1

The Swiss courts at the place of habitual residence or domicile of the child or, in the absenceof such domicile, those at the place of habitual residence of the defendant parent shall have

UMBRICHT25 ATTORNEYS AT LAWjurisdiction over actions regarding the relations between parent and child, in particular, main-tenance of the child.2

The provisions of this Code concerning names (Art. 33, 37 to 40), the protection of minors(Art. 85), and the law of inheritance (Art. 86 to 89) take . 802. Jurisdiction for Swiss citizensIf neither the child nor the defendant parent is domiciled or habitually resident in Switzerlandand if one of them is a Swiss citizen, the courts at the place of Swiss citizenship shall . 813. Claims of third partiesThe Swiss courts designated under Articles 79 and 80 shall also have jurisdiction to decide:a. Claims of authorities who have made advances for the child’s maintenance;b. Claims of the mother for maintenance and reimbursement of expenses occasioned by . 82II. Applicable law1. General rule1

The relations between parent and child shall be governed by the law of the State of the ha-bitual residence of the child.2

However, if neither spouse is domiciled in the State of habitual residence of the child and ifthe parents and the child are citizens of the same State, the law of that State shall be applica-ble.3

The provisions of this Code concerning names (Art. 33, 37 to 40), the protection of minors(Art. 85), and the law of inheritance (Art. 90 to 95) take precedence.

UMBRICHT26 ATTORNEYS AT LAWArt. 832. MaintenanceThe maintenance obligations between parent and child shall be governed by the Hague Con-vention of October 2, 19738 on the Law Applicable to Maintenance Obligations.2

1

To the extent that the mother’s claims for maintenance and reimbursement of the expensesoccasioned by the birth are not covered by the Convention, the provisions of the Conventionshall apply by . 84III. Foreign decisions1

Foreign decisions regarding the relations between parent and child shall be recognized inSwitzerland if they were rendered in the State of habitual residence of the child or in the Stateof domicile or habitual residence of the defendant parent.2

The provisions of this Code concerning names (Art. 39), the protection of minors (Art. 85),and the law of inheritance (Art. 96) take r 5: Guardianship and Other Protective MeasuresArt. 851

In matters affecting the protection of minors, The Hague Convention of October 5, 19619 onJurisdiction and Law Applicable to Protection of Minors shall govern the jurisdiction of theSwiss judicial or administrative authorities, the applicable law, and the recognition of foreigndecisions or measures.2

The Convention shall apply by analogy to persons who have reached majority, to personswho are minors only under Swiss law, or to persons who do not have their place of habitualresidence in one of the contracting States.3

In addition, the Swiss judicial or administrative authorities shall have jurisdiction, if re-quired, to protect a person or his property.

89

SR 0.211.213.01RS 0.211.231.01

UMBRICHT27 ATTORNEYS AT LAWChapter 6: InheritanceArt. 86I. Jurisdiction1. General rule1

The Swiss judicial or administrative authorities at the last domicile of the decedent shallhave jurisdiction in probate proceedings and inheritance disputes.2

Exclusive jurisdiction claimed by a State with respect to real property located therein . 872. Jurisdiction for Swiss citizens1

The Swiss judicial or administrative authorities at the place of the Swiss citizenship of thedecedent shall have jurisdiction over the estate of a Swiss citizen domiciled abroad at death tothe extent not dealt with by the foreign Swiss authorities at the place of Swiss citizenship shall always have jurisdiction if, bywill or by testamentary contract, a Swiss citizen having had his last domicile abroad has sub-mitted his entire estate or the part located in Switzerland to Swiss jurisdiction or the Swisslaw. Article 86, paragraph 2, takes . 883. Jurisdiction for property in Switzerland1

2

If a foreigner domiciled abroad at death leaves property located in Switzerland, the Swissjudicial or administrative authorities at the place where the property is located shall have ju-risdiction to regulate that part of the estate in Switzerland to the extent not dealt with by theforeign authorities.2

If there is property at more than one place in Switzerland, the Swiss judicial or administra-tive authorities first called upon shall have . 894. protective measuresIf the decedent had his last domicile abroad and left property located in Switzerland, theSwiss authorities at the place where such property is located shall order provisional measuresnecessary to protect the property.

UMBRICHT28 ATTORNEYS AT LAWArt. 90II. Applicable law1. Last domicile in Switzerland1

2

The estate of a person last domiciled in Switzerland shall be governed by Swiss law.A foreigner may, however, submit his estate by will or by testamentary contract to the law ofthe States of which he is a citizen. The choice shall be void if the decedent was no longer acitizen of the chosen State at his death or if he had acquired Swiss . 912. Last domicile abroad1

The estate of a person who had his last domicile abroad shall be governed by the law desig-nated by the private international law rules of the State in which the decedent was domiciled.2

To the extent that Swiss judicial or administrative authorities have jurisdiction under Article87, the estate of a Swiss decedent who had his last domicile abroad shall be governed bySwiss law unless the decedent had expressly reserved the law of his last domicile by will ortestamentary . 923. Scope of the law applicable to the estate and its devolution1

The law applicable to the estate shall determine what belongs to the estate, who is entitledthereto and to what extent, who shall meet the debts of the estate, the legal remedies andmeasures that may be invoked and under what procedures for execution shall be governed by the law of the State of the authority hav-ing jurisdiction. In particular, that law shall govern protective measures and the devolution ofthe estate, including the execution of the . 934. Form1

2

The form of the will shall be governed by The Hague Convention of October 5, 196110 onthe Conflicts of Laws Relating to the Form of Testamentary Dispositions.2

the Convention shall apply by analogy to the form of other dispositions by reason of death.10

SR 0.211.312.1

UMBRICHT29 ATTORNEYS AT LAWArt. 945. Testamentary capacityA person may make a disposition by reason of death if, at the time of disposition, he had tes-tamentary capacity under the law of the State of his domicile or habitual residence or underthe law of one of the States of which he was . 956. Testamentary contracts and mutual dispositions by reason of death1

A testamentary contract shall be governed by the law of the State in which the disposingparty was domiciled when the contract was executed.2

If, in a testamentary contract, the disposing party subjects his entire estate to the law of theState of his citizenship, that law shall apply in place of the law of his domicile.3

Mutual dispositions by reason of death are valid if they conform to the law of the State ofdomicile of each of the disposing parties or the law of the State of their common citizenship ifthat law was chosen.4

The provisions of this Code concerning form and testamentary capacity (Art. 93 and 94) . 96III. Foreign decisions, measures, legal instruments, and rights1

Foreign decisions, measures, and instruments concerning an estate, as well as rights whichare derived from an estate probated abroad, shall be recognized in Switzerland:a. If they were rendered, taken, drawn up, or established in the State of the last domicile ofthe decedent or pursuant to the law chosen by the decedent or if they are recognized in oneof those States; orb. In the case of decisions concerning real property, when they were rendered, taken, drawnup, or established in the State in which the property is located or if they are recognized inthat State.2

If a State claims exclusive jurisdiction over real property of a decedent located in its terri-tory, only its decisions, measures, or documents shall be recognized.3

Protective measures issued in the State in which property of the decedent is located shall berecognized in Switzerland.

UMBRICHT30 ATTORNEYS AT LAWChapter 7: PropertyArt. 97I. Jurisdiction1. Real propertyThe courts at the place in Switzerland where the real property is located shall have exclusivejurisdiction over actions concerning interests in that real . 982. Movable property1

The Swiss courts at the domicile or, in the absence of domicile, the Swiss courts at the placeof habitual residence of the defendant shall have jurisdiction over actions concerning interestsin movable property.2

If the defendant is neither domiciled nor habitually resident in Switzerland, the Swiss courtsat the place where the property is located shall have . 99II. Applicable law1. Real property1

Interests in real property shall be subject to the law of the place where the property is lo-cated.2

Claims arising from nuisances emanating from real property shall be governed by the provi-sions of this Code concerning torts (Art. 138).Art. 1002. Movable propertya. General rule1

The acquisition and loss of an interest in movable property shall be governed by the law ofthe place where the property was located at the time when the facts occurred from which theacquisition or the loss derive.2

The extent and the exercise of interests in movable property shall be governed by the law ofthe place where the property is located.

UMBRICHT31 ATTORNEYS AT LAWArt. 101b. Property in transitThe acquisition and the loss of interests in movable property in transit based on a legal trans-action shall be governed by the law of the State of . 102c. Property arriving in Switzerland1

If an item of movable property is transported to Switzerland from abroad and if an interest insuch property had not already been acquired or lost abroad, the facts occurring abroad shall bedeemed to have occurred in Switzerland.2

If an item of movable property arrives in Switzerland over which a retention of title wasvalidly established abroad which does not satisfy the requirements of Swiss law, that retentionshall nevertheless remain valid for three months.3

Such retention of title shall not be applied against a bona fide third . 103d. Retention of title to property being exportedRetention of title to an item of movable property intended for export shall be governed by thelaw of the State of . 104e. Choice of law by the parties1

The parties may submit the acquisition and loss of an interest in movable property to the lawof the State of shipment or the State of destination or to the law applicable to the underlyinglegal transaction.2

The choice of law shall not be applied against a third . 1053. Special rulesa. Pledge of claims, securities, and other rights1

The pledge of claims, securities, and other rights shall be governed by the law chosen by theparties. The choice of law shall not be applied against a third party.

UMBRICHT32 ATTORNEYS AT LAW2

In the absence of a choice of law, the pledge of claims and securities shall be governed bythe law of the State of the habitual residence of the secured creditor; the pledge of other rightsshall be governed by the law applicable to such other rights.3

Only the law applicable to the pledged right may be applied against the . 106b. Title documents1

The law designated in a document of title shall determine whether such document representstitle to the merchandise. In the absence of such designation, the law of the State of the placeof business of the issuer shall govern.2

If the document represents title to the merchandise, title to the certificate and to the mer-chandise shall be governed by the law applicable to the title document as an item of movableproperty.3

If several parties assert an interest in the merchandise, one directly, the others by virtue of atitle document, the law applicable to the merchandise itself shall determine whose right . 107c. Means of transportationThe provisions of other statutes concerning interests in ships, aircraft, and other means oftransportation shall take . 108III. Foreign decisions1

Foreign decisions concerning interests in real property shall be recognized in Switzerland ifthey were rendered in the State in which the real property is located or if they are recognizedin that State.2

Foreign decisions concerning interests in movable property shall be recognized in Switzer-land:a. If they were rendered in the State of domicile of the defendant;b. If they were rendered in the State in which the property was located, provided that thedefendant had his place of habitual residence there; orc. If they were rendered in the State of the venue agreed upon.

UMBRICHT33 ATTORNEYS AT LAWChapter 8: Intellectual Property rightsArt. 109I. JurisdictionThe Swiss courts at the domicile of the defendant shall have jurisdiction over actions con-cerning intellectual property rights. In the absence of such domicile, the Swiss courts at theplace of where protection is invoked shall have jurisdiction. This provision is inapplicable toactions concerning the validity or the registration of intellectual property rights abroad.2

1

If several defendants can be sued in Switzerland and if the claims are based essentially onthe same facts and the same grounds, an action may be brought against all of them before anyjudge having jurisdiction; the judge before whom suit is first brought shall have the defendant is not domiciled in Switzerland, actions concerning the validity or the regis-tration of intellectual property rights in Switzerland shall be brought before the Swiss courtsat the place of business of the representative of record or, in the absence of such representa-tive, before the courts at the place where the Swiss registry has its . 110II. Applicable law1

3

Intellectual property rights shall be governed by the law of the State in which protection ofthe intellectual property is sought.2

In the case of claims arising out of infringement of intellectual property rights, the partiesmay always agree, after the act causing damage has occurred, that the law of the forum shallbe applicable.3

Contracts concerning intellectual property rights shall be governed by the provisions of thisCode concerning the law applicable to contracts (Art. 122).Art. 111III. Foreign decisions1

Foreign decisions concerning intellectual property rights shall be recognized in Switzerland:a. If the decision was rendered in the State of domicile of the defendant; orb. If the decision was rendered in the State under the laws of which protection of the intel-lectual property is sought, provided that the defendant was not domiciled in Switzerland.

UMBRICHT34 ATTORNEYS AT LAW2

Foreign decisions concerning the validity or the registration of intellectual property rightsshall only be recognized if they were rendered in the State under the law of which protectionof the intellectual property is claimed or if they are recognized r 9: Law of ObligationsSection 1: ContractsArt. 112I. Jurisdiction1. General rule1

The Swiss courts at the defendant’s domicile or, in the absence of domicile, those at theplace of habitual residence of the defendant shall have jurisdiction over actions arising fromcontracts.2

In addition, the Swiss courts at the place where the defendant has his place of business shallalso have jurisdiction over actions arising out of the activities of that place of . 1132. Place of performanceIf an obligation must be performed in Switzerland and if the defendant does not have hisdomicile, habitual residence, or place of business in Switzerland, the action may be broughtbefore the Swiss court at the place of . 1143. Consumer contracts1

An action brought by a consumer relating to a contract that complies with Article 120, para-graph 1, may be filed, at the election of the consumer, before the Swiss court:a. At the domicile or, in the absence of domicile, at the place of habitual residence of theconsumer; orb. At the domicile or, in the absence of domicile, at the place of habitual residence of thesupplier.2

The consumer may not waive in advance the venue at his domicile or place of habitual resi-dence.

UMBRICHT35 ATTORNEYS AT LAWArt. 1154. Employment contractsThe Swiss courts at the domicile of the defendant or at the place where the employee habitu-ally carries out his work shall have jurisdiction over actions relating to an employment con-tract.2

1

In addition, in the case of actions brought by an employee, the Swiss courts at his domicileor the place of his habitual residence shall have . 116II. Applicable law1. In generala. Choice of law by the parties1

2

The contract shall be governed by the law chosen by the choice of law must be express or clearly evident from the terms of the contract or thecircumstances. In all other respects it shall be governed by the law chosen.3

The choice of law may be made or modified at any time. If made or modified following theconclusion of the contract, it shall be retroactive to the time the contract was concluded. Therights of third parties shall take . 117b. Absence of a choice of law1

In the absence of a choice of law, the contract shall be governed by the law of the State withwhich it is most closely connected.2

It is presumed that the closest connection exists with the State in which the party who mustperform the characteristic obligation is habitually resident or, if the contract was concluded inthe exercise of a professional or commercial activity, where such party has his place of busi-ness.3

In particular, the following shall be considered the characteristic obligation:a. The obligation of the alienator, in contracts of alienation;b. The obligation of the party transferring the use of a thing or a right, in the case of con-tracts concerning the use of a thing or a right;

UMBRICHT36 ATTORNEYS AT LAWc. The service provided, in the case of mandates, work and labor contracts, and similarservice contracts;d. The obligation of the custodian, in custodial contracts;e. The obligation of the guarantor or the surety, in guaranty or surety . 1182. In particulara. Sale of movable property1

The sale of movable property shall be governed be The Hague Convention of June 15,195511 on the Law Applicable to the International Sales of Goods.2

Article 120 takes . 119b. Real property1

Contracts concerning real property or its use shall be governed by the law of the State inwhich it is located.2

3

A choice of law by the parties is form of the contract shall be governed by the law of the State in which the real propertyis located unless that law permits the application of another law. In the case of real propertylocated in Switzerland, the form shall be governed by Swiss . 120c. Consumer contracts1

Contracts relating to the provision of ordinary goods and services intended for the personalor family use of the consumer and which are not associated with the professional or commer-cial activities of the consumer shall be governed by the law of the State in which the con-sumer is habitually resident:a. If the supplier received the order in that State;b. If the conclusion of the contract was preceded in that State by an offer or an advertisementand the consumer performed there the necessary acts to conclude the contract; orc. If the consumer was induced by the supplier to go abroad to place his order there.11

SR 0.221.211.4

UMBRICHT37 ATTORNEYS AT LAW2

A choice of law by the parties is . 121d. Employment contracts1

An employment contract shall be governed by the law of the State in which the employeehabitually carries out his work.2

If the employee habitually carries out his work in several States, the employment contractshall be governed by the law of the State of the place of business or, in the absence of a placeof business, at the domicile or place of habitual residence of the parties may subject the employment contract to the law of the State in which the em-ployee is habitually resident or in which the employer has his place of business, his domicile,or his place of habitual . 122e. Contracts concerning intellectual property rights1

3

Contracts concerning intellectual property rights shall be governed by the law of the State inwhich the party transferring the intellectual property right or granting the use thereof has hisplace of habitual residence.2

3

A choice of law by the parties is cts between an employer and an employee regarding rights to intellectual propertywhich the employee has created in the course of his employment shall be governed by the lawapplicable to the employment . 1233. Provisions in commona. Failure to respond to an offerThe party who fails to respond to an offer to conclude a contract may request that the effectsof his silence be governed by the law of the State in which he has place of habitual . 124b. Form1

A contract is valid as to form if it conforms with the law applicable to the contract or to thelaw of the place where it is concluded.2

The form of a contract concluded between persons in different States is valid if it conformswith the law of one of those States.

UMBRICHT38 ATTORNEYS AT LAW3

The form of the contract shall be governed exclusively by the law applicable to the contractif, to protect a party, that law prescribes compliance with a specific form unless that law per-mits the application of another . 125c. Performance and inspection proceduresPerformance and inspection procedures shall be governed by the law of the State in whichthey actually . 126d. Agency1 If agency is based on contract, the relationship between the principal and the agent shall begoverned by the law applicable to their contract.2 The conditions under which acts of the agent bind the principal in relation to third partiesshall be governed by the law of the State in which the agent has his place of business or, inthe absence thereof or if that place is not evident to the third party, the law of the State inwhich the agent primarily acts in the particular case.3 If the agent has an employment contract with the principal and if he has no place of businessof his own, his place of business shall be deemed to be the registered office of the principal.4 The law designated in paragraph 2 shall also apply to the relationship between an unau-thorized agent and a third n 2: Unjust enrichmentArt. 127I. JurisdictionThe Swiss courts at the domicile of the defendant or, in the absence of domicile, those at hisplace of habitual residence or at his place of business shall have jurisdiction over actions withrespect to unjust enrichment.

UMBRICHT39 ATTORNEYS AT LAWArt. 128II. Applicable law1

Claims of unjust enrichment shall be governed by the law which governs the existing or al-leged legal relationship from which the enrichment results.2

If there is no such legal relationship, claims of unjust enrichment shall be governed by thelaw of the State in which the enrichment occurred; the parties may agree that the law of theforum shall n 3: TortsArt. 129I. Jurisdiction1. In general1

The Swiss courts at the domicile of the defendant or, in the absence of domicile, those at hisplace of habitual residence or at his place of business shall have jurisdiction over actions intort.2

If the defendant is neither domiciled nor habitually resident in Switzerland and does not havea place of business in Switzerland, an action may be brought before the Swiss court at theplace in which the act that caused injury arose or the resultant injury occurred.3

If several defendants can be sued in Switzerland and if the claims are based essentially onthe same facts and grounds, an action may by brought against all of them before any judgehaving jurisdiction; the judge before whom suit is first brought shall have exclusive . 1302. In particular1

The Swiss courts at the place where the event causing damage occurred shall have jurisdic-tion over actions concerning damage caused by a nuclear installation or the transportation ofnuclear substances.2

If that place cannot be determined, the action may be brought:a. If the operator of a nuclear installation is liable, before the Swiss courts at the place wherethe nuclear installation is located;

UMBRICHT40 ATTORNEYS AT LAWb. If the holder of a transportation license is liable, before the Swiss courts at the place wherethe holder is domiciled or has elected domicile.3 Actions to enforce the right to information against the holder of a data collection may bebrought before the courts named in Article 129 or before the Swiss courts at the place wherethe data collection is maintained or used.12Art. 1313. Direct action against insurerA direct action against the insurer may be brought before the Swiss courts at the place wherethe insurer has his place of business or at the place in which the act that caused injury arose orthe resultant injury . 132II. Applicable law1. In generala. Choice of law by the partiesThe parties may agree any time after the event causing damage has occurred that the law ofthe forum shall be . 133b. Absence of a choice of law1

If the tortfeasor and injured party have their place of habitual residence in the same State,claims founded in tort shall be governed by the law of that the tortfeasor and the injured party do not have their place of habitual residence in thesame State, the claims shall be governed by the law of the State in which the tort was com-mitted. If the injury occurs in another State than the State, in which the act that caused injuryarose, the law of that State shall be applicable if the tortfeasor should have foreseen that theinjury would occur there.3

2

Notwithstanding the preceding paragraphs, if a tort violates an existing legal relationshipbetween the tortfeasor and the injured party, claims founded in tort shall be governed by thelaw applicable to that legal relationship.

12Introduced through Clause 3 of the Annex to the Federal Statute dated June 19, 1992, concerning theProtection of Data, in effect since July 1, 1993 (SR 235.1).

UMBRICHT41 ATTORNEYS AT LAWArt. 1342. In particulara. Traffic accidentsClaims resulting from traffic accidents shall be governed by The Hague Convention of May 4,197113 on the Law Applicable to Traffic . 135b. Product liability1

Claims founded on a product defect or a faulty description of a product shall be governed atthe option of the injured party by:a. The law of the State in which the tortfeasor has his place of business or, in the absence ofa place of business, his place of habitual residence.; orb. The law of the State in which the product was purchased unless the tortfeasor proves thatthe product was marketed in that State without his consent.2

If claims founded on a product defect or a faulty description of a product are governed byforeign law, no awards may be made in Switzerland in excess of those which would havebeen awarded for such damage under Swiss . 136c. Unfair competition1

Claims founded on an act of unfair competition shall be governed by the law of the State inwhose market the effects occur.2

If the act affects exclusively the business of a particular competitor, the applicable law shallbe that of the State where the place of business of the injured party is located.3

Article 133, paragraph 3, takes . 137d. Restraint of competition1

Claims founded on restraint of competition shall be governed by the law of the State inwhose market the direct effects of the restraint on the injured party occur.

13 SR 0.741.31

UMBRICHT42 ATTORNEYS AT LAW2

If claims founded on restraint of competition are governed by foreign law, no awards may bemade in Switzerland in excess of those which would have been awarded for a restraint ofcompetition under Swiss . 138e. NuisancesClaims arising from nuisances emanating from real property shall be governed at the option ofthe injured party by the law of the State in which the real property is located or by the law ofthe State in which the effects of the nuisances . 139f. Infringement of personality rights1

Claims founded on an infringement of personality rights by the media, especially by thepress, radio, television, or other means of public information, shall be governed at the optionof the injured party by:a. The law of the State in which the injured party has his place of habitual residence of thetortfeasor should have foreseen that the effects would occur in that State;b. The law of the State in which the tortfeasor has his place of business or place of habitualresidence; orc. The law of the State in which the effects of the infringement have occurred if the tortfea-sor should have foreseen that the effects would occur in that State.2

The right to reply against the media shall be governed exclusively by the law of the State inwhich the publication appeared or from which the radio or television program was broad-casted.3 Paragraph 1 shall also apply to claims founded on an infringement of personality rightsthrough the processing of personal data and claims founded on an impairment of the right toinformation concerning personal data.14

14Introduced through Clause 3 of the Annex to the Federal Statute dated June 19, 1992, concerning theProtection of Data, in force since July 1, 1993 (SR 235.1).

UMBRICHT43 ATTORNEYS AT LAWArt. 1403. Special provisionsa. Several tortfeasorsIf several parties participated in a tort, the applicable law shall be determined separately foreach of them, whatever their role . 141b. Direct action against insurerThe injured party may bring his claim directly against the insurer of the liable party if the lawapplicable to the tort or the insurance contract so . 1424. Scope of application1

The law applicable to the tort shall determine in particular tortious capacity, the conditionsand extent of liability, as well as the party liable.2

Regulations governing safety and conduct in force at the place of the act shall be taken n 4: Provisions in CommonArt. 143I. Multiple debtors1. Claims against several debtorsIf the creditor has a claim against several debtors, the legal consequences thereof shall be de-termined under the law which governs the legal relationship between the creditor and thedebtor . 1442. Recourse between debtors1

A debtor has a right of recourse against a co-debtor, directly or by subrogation, only to theextent permitted under the laws governing their debts to the creditor.

UMBRICHT44 ATTORNEYS AT LAWThe exercise of the right of recourse against a co-debtor shall be governed by the law appli-cable to the debt between that debtor and the creditor. Questions exclusively concerning therelationship between the creditor and the claimant debtor shall be governed by the law appli-cable to the debt between them.3

2

The right of an institution performing public duties to seek recourse shall be determined bythe law applicable to that institution. For the admissibility and exercise of the right of re-course, paragraphs 1 and 2 are . 145II. Transfer of a claim1. Assignment by contract1

The contractual assignment of a claim shall be governed by the law chosen by the parties or,in the absence of such choice, by the law applicable to the claim. The choice of law made bythe assignor and assignee shall not be applied against the debtor without his consent.2

The choice of law concerning the assignment of a claim of an employee shall only be validto the extent permitted under Article 121, paragraph 3, concerning an employment contract.3

The form of assignment shall be governed exclusively by the law applicable to the contractof assignment.4

Questions exclusively concerning the relationship between assignor and assignee shall begoverned by the law applicable to the legal relationship on which the assignment is . 1462. Transfer by operation of law1

The transfer of a claim by operation shall be governed by the law which governs the under-lying legal relationship between the former and the new creditor or, in the absence of suchrelationship, by the law which governs the claim.2

The provisions of the law governing the claim which are intended to protect the debtor . 147III. Currency1

Currency is defined by the law of the State issuing the currency

UMBRICHT45 ATTORNEYS AT LAWThe effects that currency exerts on the amount of a debt shall be governed by the law appli-cable to the debt.3

2

The law of the State in which payment must be made shall determine in which currency thepayment is to be . 148IV. Statute of limitations and extinction of a claim1

The law applicable to a claim shall govern the statute of limitations applicable to it and itsextinction.2 In the case of extinction by set-off, the law applicable is that which governs the claim towhich the set-off is made.3 Novation, release, and contracts of set-off shall be governed by the provisions of this Codeconcerning the law applicable to contracts (Art. 116 et seq.).Section 5: Foreign DecisionsArt. 1491

Foreign decisions relating to claims concerning the law of obligations shall be recognized inSwitzerland:a. If they were rendered in the State of domicile of the defendant; orb. If they were rendered in the State of habitual residence of the defendant and the claimsrelate to an activity conducted there.2

A foreign decision shall also be recognized:a. If a decision relating to a contractual obligation was rendered in the State of performanceand the defendant was not domiciled in Switzerland;b. If a decision relating to a claim concerning a consumer contract was rendered at the domi-cile or place of habitual residence of the consumer and the conditions set forth in Art. 120,paragraph 1, are satisfied;c. If a decision relating to a claim concerning an employment contract was rendered at theplace where the employee worked or at the place where the business was conducted andthe employee was not domiciled in Switzerland;d. If a decision relating to a claim resulting from the operation of a business was rendered atthe registered office of that business;

UMBRICHT46 ATTORNEYS AT LAWe. If a decision relating to unjust enrichment was rendered at the place of the act or the re-sultant injury and the defendant was not domiciled in Switzerland; orf. If a decision relating to a tort was rendered at the place of the act or the resultant injuryand the defendant was not domiciled in r 10: Company LawArt. 150I. NotionsFor purposes of this Code, the term company shall include all organized associations of per-sons and all organized units of assets.2

1

Simple partnerships which have not been organized shall be governed by the provisions ofthis Code concerning contracts (Art. 116 et seq.).Art. 151II. Jurisdiction1. General rule1

In disputes concerning company law, the Swiss courts at the registered office of the com-pany shall have jurisdiction over actions against the company, the stockholders or partners, orthe persons liable under company law.2

The Swiss courts at the domicile or, in the absence of domicile, at the place of habitual resi-dence of the defendant shall also have jurisdiction over actions against a stockholder or apartner or a person liable under company law.3

In addition, the Swiss courts at the place of public issuance of equity and debt instrumentsshall have jurisdiction over an action in responsibility related to the issuance. This jurisdictioncannot be precluded by an agreement on . 1522. Liability for foreign companiesThe following courts shall have jurisdiction over actions brought against a person liable underArticle 159 or against the foreign company for which the person acts:a. The Swiss courts at the domicile or, in the absence of domicile, the place of habitual resi-dence of the defendant; or

UMBRICHT47 ATTORNEYS AT LAWb. The Swiss courts at the place where the company is administered in . 1533. Protective measuresMeasures intended to protect property located in Switzerland of companies which have theirregistered office abroad shall be under the jurisdiction of the Swiss judicial or administrativeauthorities at the place where the property to be protected is . 154III. Applicable law1. General ruleCompanies shall be governed by the law of the State under which they are organized if theysatisfy the publication or registration requirements of that law or, if there are no such re-quirements, if they are organized according to the law of that State.2

1

A company which fails to meet these conditions shall be governed by the law of the State inwhich it is administered in . 1552. ScopeExcept as set forth in Articles 156 to 161, the law applicable to the company shall govern inparticular:a. The legal nature of the company;b. The formation and dissolution;c. The legal capacity and the capacity to act;d. The name or the style;e. The organization;f. The internal relationships, in particular the relationship between the company and itsmembers;g. The liability arising from the violation of company law;h. The liability for the debts of the company;

UMBRICHT48 ATTORNEYS AT LAWi. The power to represent the company by the persons acting for it pursuant to its . 156IV. Special rules1. Claims arising from the public issuance of equity and debt instrumentsClaims arising from the public issuance of equity and debt instruments by means of a pro-spectus, circular, or similar publications shall be governed by the law applicable to the com-pany or that of the State in which the issuance is . 1572. Protection of the name and the style1

The protection against infringement in Switzerland of the name or the style of a companyregistered in the Swiss Register of Commerce shall be governed by Swiss law.2

In the absence of registration in the Swiss Register of Commerce, the protection of the nameor the style shall be governed by the law applicable to unfair competition (Art. 136) or to in-fringement of personality rights (Art. 132, 133 and 139).Art. 1583. Restriction on the power to represent a companyA company may not invoke restrictions on the representative power of a director, officer, oragent which are unknown under the law of the place of business or habitual residence of theother party unless the other party knew or should have known of the . 1594. Liability for foreign companiesIf the business of a company formed under foreign law is conducted in or from Switzerland,the liability of the persons acting on behalf of the company shall be governed by Swiss . 160V. Swiss branch of foreign companies1

A company which has its registered office abroad may have a branch in Switzerland. Thebranch shall be governed by Swiss law.

UMBRICHT49 ATTORNEYS AT LAW2

Swiss law shall govern the power to represent such branch. At least one person authorized torepresent the branch must be domiciled in Switzerland and be registered in the Register ofCommerce.3

The Federal Council shall fix the requirements of the mandatory registration in the Registerof . 161VI. Transfer of a foreign company to Switzerland1. General rule1 A foreign company may, without liquidating and reincorporating, submit itself to Swiss lawif the governing foreign law so permits. The company must satisfy the requirements fixed bythe foreign law and must be able to adopt one of the forms of organization of Swiss law.2 The Federal Council may authorize the submission to Swiss law even if the requirementsfixed by the foreign law are not met, particularly if important Swiss interests are . 1622. Determinative point in timeA company which, pursuant to Swiss law, is required to be registered in the Register ofCommerce shall be governed by Swiss law as soon as it proves that its center of business ac-tivities has been transferred to Switzerland and that it has adopted one of the forms of organi-zation under Swiss law.A company which, pursuant to Swiss law, is not required to be registered in the Register ofCommerce shall be governed by Swiss law as soon as it has clearly chosen to be governed bySwiss law, has a sufficient relationship with Switzerland, and adopts one of the forms of or-ganization under Swiss law.32

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Before it may be registered, a joint stock company must prove by means of an auditor’s re-port from a firm of auditors duly authorized by the Federal Council that its share capital isunimpaired according to Swiss . 163VII. Transfer of a company from Switzerland to a foreign country1. General rule1

A Swiss company may, without liquidating and reincorporating, submit itself to a foreignlaw if it proves: