Under the jurisdiction rules of the Brussels and Lugano Conventions, it is possible that the courts of more than one member state have jurisdiction to deal with the same matter between the same parties. Article 21 of the Conventions provides that in such a situation the court "first seised" shall be exclusively competent to deal with the case. The Conventions do not define the exact moment in time when a court is seised of an action. In its decision in Zelger v. Salinitri (Case 129/83, 7 June 1984), the Court of Justice of the EC ("ECJ") held that the court "first seised" under Article 21 of the Brussels Convention is the one before which the requirements for proceedings to become "definitively pending" are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned.

A case recently decided by the Swiss courts shows the practical importance of the definition of the relevant point in time by the national courts.

In a dispute between an English party ("E") and three Swiss parties ("S1", "S2", and "S3", collectively "S"), S, on 8 February 1993, filed an action against E with a Justice of the Peace in Zurich for conciliation proceedings. S sought a declaratory judgement to the effect that S did not owe any debt to E, in particular that S1 did not owe the amount of £75,291 mio., that S2 did not owe the amount of £34,377 mio. and that S3 did not owe the amount of £11,995 mio. Under the Zurich Civil Procedure Code, the Justice of the Peace may issue the "Weisung" (i.e., the formal statement that the parties have not settled the case in the conciliation proceedings and that the plaintiff insists on bringing the case to the competent court) without hearing the defendant if the defendant is a foreign resident and has no agent for service of process in Switzerland. Pursuant to that rule, the Justice of the Peace issued the "Weisung" on 9 February 1993. (The conciliation proceedings before the Justice of the Peace are mandatory; without the "Weisung", the plaintiff cannot bring his action in the competent court).

In the late afternoon of the same day, 9 February 1993, E served a Writ of Summons on S's lawyers in London who were authorised to accept service. On 10 February 1993, E served its Statement of Claim on S, in which it requested a judgement ordering the defendants to pay the above amounts. On 14 October 1993, Justice Vinelot held that the High Court of England and Wales was properly seised with the action at the moment when the Writ was served on S, i.e., on 9 February 1993. However, he stayed the English proceedings until the Swiss courts decided whether or not to accept jurisdiction.

Meanwhile, on 13 April 1993, S had filed their statement of claim with the District Court of Zurich.

This was the first case in which the Swiss courts were called upon to define the time when, under Swiss law, a court is seised with an action for purposes of Article 21 of the Lugano Convention. In doing so, pursuant to Protocol No. 2 to the Lugano Convention, the Swiss courts were bound by the ECJ's ruling in the Zelger v. Salinitri case.

Swiss law provided good arguments for the positions taken by both parties:

S relied heavily on Article 9 of the Swiss Federal Private International Law Act of 17 December 1998, which took effect on 1 January 1989, which states:

"In order to determine when an action has been initiated in Switzerland, the conclusive date is that of the first act that is necessary to initiate the proceeding. A notice to appear for conciliation is sufficient."

The purpose of this provision is to provide, in cross-border cases, a uniform, nation-wide definition of the moment when an action is actually brought. S argued that this definition was to be used in all cross border cases, regardless of whether they arise under the regime of the Lugano Convention or not. Clearly, if Article 9 of the PILA was applicable, the Swiss courts would have been seised of S's action on 8 February 1993.

E, on the other hand, argued that Article 9 of the PILA did not satisfy the requirements set by the ECJ for the proceedings to have become "definitively pending". Under the Zurich Civil Procedure Code - like under the Civil Procedure Codes of many other Cantons - , an action is brought and there can be lis pendens only at the time when the "Weisung" is filed with the competent court. Under this concept, the Swiss courts would have been seised with S's action only on 13 April 1993, thus clearly after the English courts.

The Swiss courts found for E. The Zurich District Court (in a decision of 15 July 1994), the Superior Court of the Canton of Zurich (in a decision of 3 October 1995), and, finally, the Federal Court, the highest court of this country, (in a decision of 26 September 1997, reported in BGE 123 III 414), held that, at least under the Zurich Civil Procedure Code, the proceedings had not not yet become "definitively pending" at the time of the notice to appear for conciliation so that the definition of Article 9 of the PILA could not be applied in cases arising under the Lugano Convention. In fact, under Zurich law, a plaintiff is under no obligation to continue proceedings after he has received the "Weisung" from the Justice of the Peace. If he does not file the action with the competent court within three months following receipt of the "Weisung", the "Weisung" becomes invalid but the plaintiff is not prevented from obtaining a new "Weisung" and from bringing his action anew in the competent court (provided of course that the action has not become time-barred in the meantime).

This decision has far-reaching consequences for parties who have an interest to litigate their case before the Swiss courts. In forum-running situations, it will now be difficult to seise the Swiss courts' jurisdiction (at least in those Cantons with a system similar to the one in Zurich) without delay in order to prevent the courts of other Contracting States from being first seised with the matter.

Martin Bernet, Schellenberg & Haissly, Zurich, Zug and Geneva, Switzerland

April 1998

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.