On 18 September 2024 Switzerland deposited its accession instrument to the Hague Convention of 30 June 2005 on Choice of Court Agreements (HCCH), and simultaneously filed a declaration under its Article 22 on non-exclusivity.
The HCCH accession, serving as the background to the Federal Parliament’s 2023[i] decision to adopt the amendment to the Federal Act on Private International Law (PILA), is set to become effective as of 1 January 2025. The step will regulate the validity of choice of court agreements, the jurisdiction of agreed courts in international commercial disputes and the cross-border recognition and enforcement of court judgements, which in turn is expected to bring about more legal certainty in favour of Switzerland as a location of choice for doing business in cross border settings, not only in terms of increased predictability in international disputes but also possibly due to decreased procedural costs.
Being largely compatible with the Swiss law, the HCCH accession will in practice only result in the amendment of PILA with respect to its Articles 5 and 6 on choice of forum, and respectively on implied consent.
In addition, Article 26 HCCH regulates possible conflicts with other international instruments such as the Lugano Convention, whereby the latter shall take precedence in cases of inconsistency.
On a different note, as the first State to ever file a declaration under Article 22 HCCH, “[…] Switzerland declares that its courts will recognise and enforce judgements given by courts of other Contracting States designated in a choice of court agreement concluded by two or more parties that meets the requirements of Article 3, paragraph c), and designates, for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, a court or courts of one or more Contracting States.”
The application of this provision would nevertheless be conditional upon reciprocity between the State of origin and the State in which recognition or enforcement is sought, whereby both States’ declarations would already need to be in place for the non-exclusivity to become effective.
[i] See here https://www.admin.ch/gov/de/start/dokumentation/medienmitteilungen.msg-id-102325.html#:~:text=Das%20Parlament%20hat%20am%2022,Januar%202025.
