SWITZERLAND: STATUTE ON PRIVATE INTERNATIONAL LAW

SWITZERLAND: STATUTE ON PRIVATE INTERNATIONAL LAWSource: International Legal Materials, Vol. 29, No. 5 (SEPTEMBER 1990), pp. 1244-1290Published by: American Society of International LawStable URL: http://www.jstor.org/stable/20693485 .

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1244

SWITZERLAND: STATUTE ON PRIVATE INTERNATIONAL LAW* [December 18, 1987; entered into force January 1, 1989]

Cite as 29 I.L.M. 1244 (1990)+

I.L.M. Content Summary

TEXT OF STATUTE - I.L.M. Page 1254

CHAPTER ONE: COMMON PROVISIONS - I.L.M. Page 1254

Sec. One: Scope of Application (Art. 1) - I.L.M. Page 1254 [Jurisdiction; applicable law; enforcement of judgments ; bankruptcy; arbitration]

Sec. Two: Competence - I.L.M. Page 1254

I General (Art. 2) [Swiss courts of domicile of defendant]

II Jurisdiction in extremis (Art. 3) [Place where case is sufficiently connected]

III Validation of sequestration proceedings (Art. 4) [Lodged with Swiss Court of Sequestration]

IV Jurisdiction clause (Art. 5) [In pecuniary matters]

V Tacit acceptance (Art. 6) [When defendant addresses substantive issues]

VI Arbitration agreement (Art. 7) [Swiss court will decline jurisdiction unless defendant

waives or refuses to submit to arbitration, or clause is null and void]

VII Counter-action (Art. 8) [Claims must be connected]

VIII Lis pendens (Art. 9) [Stay of Swiss proceedings when foreign proceedings are

pending] IX Provisional measures (Art. 10)

[Regardless of subject matter jurisdiction] X Mutual assistance proceedings (Art. 11)

[Apply law of the Canton where executed] XI Deadlines (Art. 12)

[Filing with Swiss diplomatic or consular office is sufficient]

*[ Reproduced from the translation prepared for International Legal Materials by Charles Poncet, Law Offices of Charles Poncet (Geneva), and I.L.M. Corresponding Editor for Switzerland. Chapter 12 of this Statute, which covers international arbitration, was previously translated and accompanied by an Introductory Note by Charles Poncet and Emmanuel Gaillard, Professor of Law at the Uni versity of Paris XII, European Counsel, Shearman & Sterling (Paris), and I.L.M. Corresponding Editor for France. It appears at 27 I.L.M. 37 (1988).

[The German text of the Statute appears in Bundesblatt 1988 I 5-60; the French text in Feuille federale 1988 I 5-56; the Italian text in Foglio federale 1988 I 5-56.]



1245

Sec. Three: Applicable Law - I.L.M. Page 1256 I Scope of the rule of conflict (Art. 13)

[Applies to all subject matter, including public law] II Renvoi (Art. 14) III Exception (Art. 15)

[Law will not apply if only slightly connected to subject matter and not chosen by parties]

IV Ascertainment of the contents of foreign law (Art. 16) [Ex Officio]

V Caveat re. Swiss public policy (Art. 17) [No application of foreign law that is contra Swiss public policy]

VI Application of mandatory provisions of Swiss law (Art. 18)

VII Consideration of mandatory provisions of foreign law (Art. 19)

Sec. Four: Domicile, Seat and Nationality - I.L.M. Page 1257

I Domicile, habitual residence and place of business of a natural person (Art. 20)

II Corporate seat and place of business of companies (Art. 21)

III Nationality (Art. 22) [Law of state concerned]

IV Multiple nationalities (Art. 23) V Stateless persons and refugees (Art. 24)

Sec. Five: Recognition and Enforcement of Foreign Decisions - I.L.M. Page 1258

I Recognition 1. Principle (Art. 25)

[Recognized if foreign court had jurisdiction, judgment is final, and there are no grounds of refusal under Art. 271

2. Jurisdiction of foreign authorities (Art. 26) 3. Grounds for refusal (Art. 27)

II Enforceability (Art. 28) [If recognizable under arts. 25-27, foreign judgment

will be declared enforceable upon request of interested party]

III Procedure (Art. 29) [For requesting recognition or enforcement]

IV Compromise in court (Art. 30) [Arts. 25-29 apply by analogy]

V Ex gratia jurisdiction (Art. 31) [Arts. 25-29 apply by analogy]

VI Entry [of foreign decision or act] in the register (Art. 32)

CHAPTER TWO: NATURAL PERSONS - I.L.M. Page 1259 I Principle (Art. 33)

[Law of state of domicile governs] II Legal capacity (Art. 34)

[Swiss law governs]



1246

III Exercise of legal capacity 1. Principle (Art. 35)

[Law of state of domicile governs] 2. Protection of transaction (Art. 36)

[Regarding law governing defense of incapacity to contract]

IV Name 1. General (Art. 37)

[Regarding when Swiss law, international private law, and foreign law govern]

2. Change of name (Art. 38) 3. Change of name taken place abroad (Art. 39) 4. Entry in the register (Art. 40)

V Declaration of absence 1. Jurisdiction and applicable law (Art. 41)

[Swiss courts of last known domicile; Swiss law governs]

2. Declaration of absence and of death occurring abroad (Art. 42)

CHAPTER THREE: MARRIAGE - I.L.M. Page 1261

Sec. One: Marriage Ceremony - I.L.M. Page 1261

I Jurisdiction (Art. 43) [Bride or bridegroom must be a Swiss domiciliary or

national] II Applicable law (Art. 44)

[Regarding marriages between foreigners that do not meet Swiss law requirements]

III [Recognition of] Marriage ceremony held abroad (Art. 45)

Sec. Two: General Consequences of Marriage - I.L.M. Page 1261

I Jurisdiction (Art. 46) [Place of domicile or habitual residence of a spouse]

Original judicial competence (Art. 47) II Applicable law

1. Principle (Art. 48) [Law of: State of domicile; state of domicile

with closest connection to issue; see Art. 47] 2. Maintenance obligation (Art. 49)

[Hague Convention of 2 October 1973] III [Recognition of] Foreign decisions or measures (Art.

50)

Sec. Three: Matrimonial Regimes - I.L.M. Page 1262

I Jurisdiction (Art. 51) [Probate court (arts. 86-89); divorce court (arts. 59, 60, 63, 64); all others, see above arts. 46-47]

II Applicable law 1. Choice of law

a) Principle (Art. 52) [Law chosen by spouses]

b) Modalities (Art. 53) [By written agreement]



1247

2. Failing a choice of law a) Principle (Art. 54)

[Law of: State of common domicile; common nationality. Swiss regime of separate assets]

b) Retro-active change of domicile (Art. 55) [Written agreement prevents retroactivity]

3. Form of marriage contract (Art. 56) 4. Legal relationship with third parties (Art. 57)

[Law of place where relationship was formed] 5. [Recognition of] Foreign decisions (Art. 58)

Sec. Four: Divorce and Judicial Separation - I.L.M. Page 1264

I Jurisdiction 1. Principle (Art. 59)

[Swiss courts of domicile of: Defending spouse; plaintiff spouse if either a Swiss national or resident for more than one year]

2. Original judicial competence (Art. 60) II Applicable law (Art. 61)

[Swiss law; common national law] III Provisional measures (Art. 62)

[Subject to Swiss law] IV Ancillary consequences [ancillary jurisdiction] (Art.

63) V Complementary or amended decision (Art. 64) VI [Recognition of] Foreign decisions (Art. 65)

CHAPTER FOUR: FILIATION - I.L.M. Page 1266

Sec. One: Filiation by Birth - I.L.M. Page 1266 I Jurisdiction

1. Principle (Art. 66) [Swiss courts of child's habitual residence or a

parent's domicile] 2. Original judicial competence (Art. 67)

II Applicable law 1. Principle (Art. 68)

[Law of child's habitual residence] 2. Determining date (Art. 69)

[Date of birth; date of claim] III [Recognition of] Foreign decisions (Art. 70)

Sec. Two: Recognition [of a child] - I.L.M. Page 1266 I Jurisdiction (Art. 71) II Applicable law (Art. 72)

[Law of: Child's habitual residence; child's national state; father's or mother's domicile or national state]

III Recognition established or contested abroad (Art. 73) [If valid in child's state of habitual residence or

national state or father's or mother's domicile or national state]

IV Legitimation (Art. 74) [Art. 73 applies by analogy]



48

Sec. Three: Adoption - I.L.M. Page 1267

I Jurisdiction 1. Principle (Art. 75)

[Swiss courts of adopting party's domicile] 2. Jurisdiction of the domicile of origin (Art. 76)

II Applicable law (Art. 77) [Swiss law]

III Adoptions and similar arrangements under foreign law (Art. 78)

Sec. Four: Consequences of Filiation - I.L.M. Page 1268 I Jurisdiction

1. Principle (Art. 79) [Swiss courts of: Child's habitual residence;

defending parent's habitual residence] 2. Jurisdiction of domicile of origin (Art. 80)

[If neither child nor defending parent have habitual residence in Switzerland]

3. Claims by third parties (Art. 81) [Maintenance; maternity expenses]

II Applicable law 1. Principle (Art. 82)

[Law of: Child's habitual residence; state of parents' common nationality]

2. Maintenance (Art. 83) [Hague Convention of 2 October 1973 on the Law

applying to Maintenance Obligations] III [Recognition of] Foreign decisions (Art. 84)

CHAPTER FIVE: GUARDIANSHIP AND OTHER PROTECTIVE MEASURES - I.L.M. Page 1269 [Hague Convention of 5 October 1961 on the Jurisdiction and Law

applying to Protection of Minors] (Art. 85)

CHAPTER SIX: INHERITANCES - I.L.M. Page 1269 I Jurisdiction

1. Principle (Art. 86) [Deceased's last domicile]

2. Jurisdiction of the domicile of origin (Art. 87) 3. Jurisdiction of the situation of the assets (Art. 88) 4. Safeguarding measures (Art. 89)

[To be taken by Swiss authorities when property is in Switzerland, but deceased died abroad]

II Applicable law 1. Last domicile in Switzerland (Art. 90)

[Swiss law governs when deceased's last domicile was Switzerland; law of national state, if indicated in will or inheritance agreement]

2. Last domicile abroad (Art. 91) [International private law; law of state of domicile of origin; law indicated in will or inheritance agreement]

3. Estate and liquidation (Art. 92) 4. Form [of wills] (Art. 93)

[Hague Convention of 5 October 1961 on Conflicts of Laws concerning the Form of testamentary provisions]

5. Capacity for disposal (Art. 94) [Law of: State of domicile; state of habitual residence; national state involved]



1249

6. Inheritance agreements and other reciprocal arrangements in the event of death (Art. 95) [Law of: State where person is domiciled at time agreement was formed; national state. Mutual or reciprocal wills or inheritance agreements. See arts. 93-94 on capacity!

Ill [Recognition of] Decisions, measures, documents and foreign laws (Art. 96)

CHAPTER SEVEN: RIGHTS IN REM - I.L.M. Page 1271 I Jurisdiction

1. Immovable property (Art. 97) [Location of property]

2. Movables (Art. 98) [Domicile or defending party's habitual residence]

II Applicable law 1. Immovables (Art. 99)

[Law of state of location of property] 2. Movables

a) Principle (Art. 100) [Law of state where movable was located when

dispute arose] b) Goods in transit (Art. 101)

[Law of state of destination] c) Goods transported [into] Switzerland (Art. 102) d) Property reservation of title for export (Art.

103) [Law of the state of destination]

e) Jurisdiction clause (Art. 104) 3. Special rules

a) Pledgery of claims, securities or other assets (Art. 105) [Law of state of pledging creditor's habitual residence]

b) Documents representative of goods (Art. 106) [Law specified in document; if not specified, law of state of document issuer's place of business]

c) Means of transport (Art. 107) [See laws relating to ships, aircraft, and other transport]

III [Recognition of] Foreign decisions (Art. 108)

CHAPTER EIGHT: INTELLECTUAL PROPERTY - I.L.M. Page 1273 I Jurisdiction (Art. 109)

[Swiss courts of defending party's domicile or, if none, courts of location where protection is sought. If claim is against several defendants, 1st court seized of action has exclusive jurisdiction; Swiss courts of the seat of the registered representative; seat of person responsible for the register]

II Applicable law (Art. 110) [Lex fori; see contracts, art. 122]

III [Recognition of] Foreign decisions (Art. Ill)



1250

CHAPTER NINE: LAW OF OBLIGATIONS - I.L.M. Page 1274

Sec. One: Contracts - I.L.M. Page 1274 I Jurisdiction

1. Principle (Art. 112) [Swiss courts of defending party's domicile or, if

none, habitual residence; Swiss courts of place of business]

2. Place of execution (Art. 113) [Failing domicile, habitual residence, or place of

business of defending party in Switzerland] 3. Contracts concluded with consumers (Art. 114)

[Swiss courts of: Consumer's domicile or habitual residence; supplier's domicile or, if none, habitual residence]

4. Labour contracts (Art. 115) [Swiss courts of: Defending party's domicile; location where worker habitually performs work; worker's domicile or habitual residence]

II Applicable law 1. In general

a) Choice of law (Art. 116) [Contract]

b) Failing choice of law (Art. 117) [Law of state of closest connection]

2. In particular a) Sale of movable assets (Art. 118)

[Hague Convention of 15 June 1955 on the law applying to International Sales of Movable Property; see art. 120]

b) Immovables (Art. 119) [Lex situs; contract]

c) Contracts concluded with consumers (Art. 120) [Law of state of consumer's habitual residence]

d) Labour contracts (Art. 121) [Law of: State where worker habitually

performs work; worker's place of business; worker's domicile or habitual residence]

e) Contracts relating to intellectual property (Art. 122)

3. Common provisions a) Silence following receipt of an offer (Art.

123) [Law of state of offeree's habitual residence]

b) Form (Art. 124) [Law of the place where contract is formed]

c) Modalities of execution or verification (Art. 125) [Law of state where execution takes place]

d) Agency (Art. 126) [Law of: State of agent's place of business or, if none, place of main activities; seat of principal]

Sec. Two: Unjust Enrichment - I.L.M. Page 1277 I Jurisdiction (Art. 127)

[Swiss courts of defending party's domicile or, if none, habitual residence]



1251

II Applicable law (Art. 128) [Law applicable to underlying relationship of parties or, if none, law of state where unjust enrichment is alleged to have taken place]

Sec. Three: Torts - I.L.M. Page 1277 I Jurisdiction

1. In general (Art. 129) [Swiss courts of: Defending party's domicile or, if none, habitual residence or place of business; place where injurious act or injury took place] 2. In particular (Art. 130) [Damage caused by nuclear accident]

3. Claim against the insurer (Art. 131) [Swiss courts of: Insurer's place of business;

place where injurious act or injury took place] II Applicable law 1. In general

a) Choice of law (Art. 132) [By agreement post-injury]

b) Failing choice of law (Art. 133) [Law of: State of plaintiff's and defendant's common habitual residence; place where injury was sustained; place where injurious act was committed]

2. In particular a) Road traffic accidents (Art. 134)

[Hague Convention of 4 May 1971] b) Product liability (Art. 135)

[Law of: Defending party's place of business or, if none, habitual residence; place where product was legally acquired]

c) Unfair competition (Art. 136) [Law of: State of affected market; state of the seat of the injured party]

d) Restriction of competition (Art. 137) [Law of state of affected market]

e) Interference (Art. 138) [Law of state of immovable asset's location or

where damage took place] f) Defamation of character (Art. 139)

[Law of: Place of injured party's habitual residence; defending party's place of business or habitual residence; place where damage was sustained. Law of right of reply governed by law of place whence statement published or transmitted]

3. Special rules a) Joint tortfeasors (Art. 140)

[Determined separately] b) Claim against the insurer (Art. 141)

4. Scope of application (Art. 142)

Sec. Four: Common Provisions - I.L.M. Page 1280 I Multiple debtors

1. Claims against several debtors (Art. 143) [Law governing debtor-creditor relationship] 2. Recourse against joint debtors (Art. 144) [Law governing the debt]



1252

II

III

IV

Sec.

Page Five : 1281

CHAPTER TEN:

III

IV

VI

VII

Transfer of claims 1. Contractual assignment (Art. 145)

[Law chosen by parties; law governing the claim] 2. Legal assignment (Art. 146)

[Law applying to relationship of assignor and assignee or, if none, law governing the claim]

Currency (Art. 147) [Defined by law of issuing state; currency of payment is governed by law of state where payment is to be made ] Time-barring and extinction of claims (Art. 148) [Law applying to the claim; see arts. 116 et seq.]

[Recognition of] Foreign Decisions (Art. 149) - I.L.N.

COMPANIES - I.L.M. Page 1282 Definitions (Art. 150) Jurisdiction 1. Principle (Art. 151)

[Swiss courts: Of seat of company; domicile or, if none, habitual residence; location where a public issue has taken place]

2. Liability for a foreign company (Art. 152) [Swiss courts of: Defendant's domicile or, none, habitual residence; place where company managed]

3. Protective measures (Art. 153) [Swiss courts where assets to located]

Applicable law 1. Principle (Art. 154)

[Law of: Regulating or where company is managed]

2. Scope of application (Art. Special connections

of defendant's of

if is

be protected are

organizing

155)

state; place

3 4

Claims deriving from the public issue of shares and loan certificates (Art. 156) [Law of state of issue] Protection of name and company style (Art. 157) [Swiss law; see unfair competition, art. 136;

defamation of character, arts. 132, 133, 139] Restriction on powers of agency (Art. 158) Liability for a foreign company (Art. 159) [Swiss law]

Branch offices of foreign companies in Switzerland (Art. 160) [Swiss law]

Transfer of company from abroad to Switzerland (Art. 161) [Swiss law] 2. Determining moment (Art. 162) Transfer of a company from Switzerland to abroad 1. Principle (Art. 163)

[Submission to foreign law] 2. Company debts (Art. 164)

[Must be satisfied before removal of company from Swiss Register]



1253 VIII [Recognition of] Foreign decisions (Art. 165)

CHAPTER ELEVEN: BANKRUPTCY AND AGREED COMPOSITION ARRANGEMENTS - I.L.M. Page 1285 I Recognition [of foreign bankruptcy decisions] (Art. 166) II Procedure

1. Competence (Art. 167) 2. Safeguarding measures (Art. 168) 3. Publication (Art. 169)

III Legal Consequences 1. In general (Art. 170) 2. Action to set aside (Art. 171) 3. Priority of creditors (Art. 172) 4. Distribution

a) Recognition of foreign order of priority (Art. 173)

b) Non-recognition of foreign priority of creditors (Art. 174)

IV Voluntary arrangement and similar proceedings Recognition (Art. 175)

CHAPTER TWELVE: INTERNATIONAL ARBITRATION - I.L.M. Page 1287 I Scope of Arbitral Tribunal (Art. 176)

[Applies to every arbitration where seat of tribunal is in Switzerland and Switzerland is not domicile or habitual residence of at least one party]

II Arbitrability (Art. 177) III Arbitration agreement (Art. 178) IV Arbitral Tribunal

1. Place of business (Art. 179) 2. Challenge of arbitrators (Art. 180)

V Lis Pendens (Art. 181) [Proceedings are deemed to be pending from time one party either files a claim or initiates procedure for appointing tribunal]

VI Procedure 1. Principle (Art. 182)

[By agreement of parties; determined by tribunal] 2. Provisional and conservatory measures (Art. 183) 3. Taking of evidence (Art. 184) 4. Other court assistance (Art. 185)

[Court of the canton where tribunal has its seat] VII Jurisdiction (Art. 186) VIII Award on the merits

1. Applicable law (Art. 187) 2. Partial award (Art. 188) 3. Arbitral award (Art. 188)

IX Finality, action to set aside 1. Principle (Art. 190)

[Grounds for attacking an award] 2. Jurisdiction (Art. 191)

[Federal Tribunal; court of the canton by agreement of the parties]

X Waiver (Art. 192) [In case of waiver of recourse against the award, enforcement of the award in Switzerland shall be governed by the New York Convention by analogy]

XI Deposit and issuance of certificate of enforceability (Art. 193)

XII Foreign arbitral awards (Art. 194) [New York Convention governs]



STATUTE ON INTERNATIONAL PRIVATE LAW fSIPLi (1) dated 18

December

1987

The Federal Assembly of the Swiss Confederation,

in view of the competence of the Confederation for External re

lations;

in view of Article 64 of the Constitution;

in view of the statement by the Federal Council dated 10 Novem

ber 1982 (2),

decrees :

CHAPTER ONE : COMMON PROVISIONS

Section One : Scope of Application

Article 1

1 . The present Law governs the international aspects of the fol

lowing :

a. The

jurisdiction

of the judi

cial or administrative autho

rities in Switzerland;

b.

Applicable

law;

c. The

conditions

governing re

cognition

and enforcement of

foreign decisions;

d. Bankruptcy and composition

with creditors;

e. Arbitration.

(1) Miss Antoinette DOP's

assistance

in the preparation of

this translation, is gratefully acknowledged.

(2) FF 1983 I 255

Section Two : Competence

Article

I. General Unless otherwise specified under the

terras of this Law, the judicial or administrative Swiss authorities of the domicile of the defendant are

competent to hear the case.

Article 3

II. Jurisdiction

in extremis Where the present Law makes no pro

vision for judicial competence in

Switzerland, and it proves impos

sible for the proceedings to be taken abroad or it is unreasonable to demand such proceedings, the

judicial or

administrative

Swiss

authorities of the place with which

the case is sufficiently connected,

have jurisdiction.

Article 4

III. Validation of

sequestration

proceedings Where the present law makes no pro

vision for

judicial

competence in Switzerland, a

claim

for validation of

sequestration

proceedings can be lodged with the Swiss Court of

Sequestration.

Article 5

IV. Jurisdiction

clause 1 . As to pecuniary matters, parties

may submit an existing or future

dispute arising from a given legal relationship to the juris

diction of a court. Such an agreement may be made in writing, by telegram, telex, fax or any

other means of communication pro

viding a

written

record. In the

absence of a contrary provision, a jurisdiction clause is exclu

sive.

h-1 Ui



2. A jurisdiction clause is null and

void if a party is abusively deprived of the jurisdiction

available to him under Swiss Law. 3. The chosen Court shall not decline its

jurisdiction :

a. if and when either party is domiciled, has its habitual

residence or

place

of business in the canton where the Court

has its seat, or

b. if and when, by virtue of the present Law, Swiss Law is ap plicable to the dispute.

Article

v

V. Tacit

acceptance In pecuniary matters, the Court

before which the defendant proceeds to the substance matter, has juris

diction, unless it declines to entertain the

claim to the extent permitted by Article 5, third para

graph . Article 7

VI. Arbitration

agreement If the parties have concluded an ar

bitration

agreement

concerning an arbitrable

dispute,

the Swiss Court seized of the

affair

shall decline

jurisdiction unless :

a. the defendant proceeded to the

substance matter without preju

dice;

b. the Court

decides

that the arbi tration agreement is null and void,

inoperative

or not appli

cable, or that

c. the arbitral tribunal cannot be convened for reasons which are clearly attributable to the

defendant in the arbitration

proceedings.

Article 8

VII. Counter-action The Court seized of the main action

shall also

entertain

the counter claim if the two claims are connec

ted.

Article 9

VIII. Lis pendens

1 . If an action involving the same cause is pending between the two parties

abroad,

the Swiss Court shall stay the proceedings if it

is forseeable that the foreign court shall reach a decision within a reasonable delay that can be recognized in Switzerland. 2. In order to

determine

the exact date of the

introduction

of the action in Switzerland, the date of the first

document

necessary

to commence the proceedings is decisive. The summons

to appear in conciliation proceedings is

adequate for this purpose. 3. The Swiss Court shall stand down

when an enforceable foreign deci

sion is submitted to it.

Article 0

IX. Provisional

measures The judicial or administrative Swiss

authorities may order provisional measures even

if

they have no juris diction over the substance matter.

Article 11

X. Mutual assistance

proceedings 1 . Mutual assistance proceedings

shall be executed in Switzerland in accordance with the Law of the Canton in which they are execu

ted.

2. At the

request

of the applicant

authorities, foreign procedural forms may

also

be observed or taken into

account

if necessary in order to uphold a claim

h-? LH



abroad, unless that is incompa tible with a major interest of

the party involved.

3. The judicial or administrative

Swiss authorities can draw up documents in forms prescribed by

foreign law or accept a sworn declaration by an applicant if

the form of a document specified

under Swiss Law, which is not recognized abroad, would be an

obstacle to a legal claim, worth

of protection, to be filed.

Article

12

Deadlines If a person abroad has to comply

with a deadline "vis-a-vis" the Swiss judicial or administrative authori

ties, it is sufficient for his claim to be filed with a diplomatic or consular Swiss office on the last

day of the deadline. Section Three : Applicable Law

Article 13

The foreign law applicable under the terms of the present Law, include all provisions applying to the sub

ject matter. Application of foreign law is not excluded solely because

of the attribution of a public law character to the provision in ques

tion.

Article

14

Renvoi 1. If the law applicable refers back

to Swiss Law or to foreign law, the referral in question is only

taken into account if the present

Law has such a provision.

2. As to family status, the refe rence back to Swiss Law shall be

respected.

Scope of the

rule of conflict

Article 15

III. Exception 1. The law designated by the present

Law shall not be applied when in exceptional cases, the subject matter is, in view of all the

circumstances, only slightly connected with this law and it

shows a much stronger connection

with another law.

2. This provision does not apply if parties have agreed on a choice

of law.

Article 16

IV. Ascertainment of the contents of

foreign law 1 . The contents of foreign law shall

be ascertained ex officio. In order to achieve this, the parties may be enjoined to collaborate. In the case of pecuniary matters,

the burden of the proof may lie

with the parties.

2. Swiss Law shall apply if it proves impossible to ascertain

the contents of the foreign law.

Article 17

V. Caveat re. Swiss public

policy The application of foreign law shall

be excluded if it leads to a result that is incompatible with Swiss

public policy.

Article 18

VI. Application

of mandatory provisions of

Swiss law There shall be no prejudice to man

datory provisions under Swiss Law having a specific purpose and which are applicable whatever law is designated by the present Law.

h-1



Article 19

VII. Consideration of mandatory

provisions of

foreign law 1. If legitimate and preponderant

interests in terms of the Swiss

conception of the law so

require, a mandatory provision of a law other than that designated

by the present Law can be taken into consideration, if the given situation presents a close

connection with that law.

2. In order to decide whether a pro vision of this sort has to be ta ken into consideration, account shall be taken of its effects and

the consequences of its applica tion in order to reach an ade

quate decision in terms of the

Swiss conception of law. Section Four : Domicile, Seat and Nationality

Article 20

I. Domicile, habitual residence and place of

business

of a

natural person 1 . In terms of the present Law, a natural person :

a. has his domicile in the State

in which he resides with the intention of having his perma

nent home there;

b. has his habitual residence in the State in which he lives during a

certain

period, even if this period is limited from

the outset;

c. has his place of business in the State in which he has the

centre of his professional or

commercial activities. 2. No person can have more than one domicile at the same time. If a person is without a domicile, the habitual residence is the deter

mining factor. The provisions of

the Civil Code relating to domi cile and residence are not appli

cable . Article 21

II.

Corporate seat and place of business of companies

1. The seat of a company is its

domicile.

2. The seat of a company is deemed to be designated in the Articles

of Association or the founding charter of the company. If no such designation exists, the seat

of a company is located where management is exercised de facto. 3. The place of business of a. com

pany is in the State in which it has its seat or a branch office.

Article 22

III. Nationality The law of the State concerned

determines the nationality of a

natural person.

Article 23

IV. Multiple

nationalities 1 . If a person has one or more

nationalities over and above

Swiss nationality, Swiss nationa lity shall be the sole criterion

to determine the competence of the jurisdiction of the domicile

of origin.

2. If a person has several nationa lities, the law of the State with

which he has the closest connec

tion determines which law shall be applied, unless the present

Law provides otherwise. 3. If recognition of a foreign deci

sion in Switzerland depends on a person's nationality, it shall

suffice to take one nationality

into consideration.

h-1 ) Ol



Article 24

Stateless persons

and refugees 1 . A person is deemed to be a state

less person if he is recognized as such by virtue of the New York

Convention of 28 September 1954 (2) on the Legal Status of State

less Persons or if relations bet ween this person and his national

State have been dissolved to such an extent that his position equals that of a stateless per

son.

2. An person is deemed to be a refu

gee if he is recognized as such

by virtue of the law of 5 October

1979 (3) on Asylum.

3. If the present Law is applied to stateless persons and refugees, domicile replaces nationality. Section Five : Recognition and Enforcement of

Foreign Decisions Article 25

Recognition

1. Principle A foreign decision shall be recogni zed in Switzerland :

a. if the judicial or administrative authorities of the State in which the decision was rendered, had

jurisdiction;

b. if no suspensive appeal can be filed against it or the decision

has become final, and

c. if there are no grounds for refu

sal under Article 27.

2. Jurisdiction of foreign authorities

Article 26

Foreign authorities have jurisdic

tion :

a. if it results from a provision of the present Law or, in the absence of such a provision, if the defendant is domiciled in the State in which the decision was

rendered;

b. if, in pecuniary matters, the parties have submitted to the

jurisdiction of the authority rendering the decision by a valid prior agreement in accordance

with the present Law;

c. if, in pecuniary matters, the defendant proceeds to the sub

stance matter without prejudice,

or

d. if, in the case of a counter claim, the authority rendering

the decision had jurisdiction in the proceedings relating to the

main claim and there is a connec

tion between the two claims.

Article 27

3. Grounds for refusal

2. Recognition of a decision must

also be withheld if either party

establishes :

a. that he was not duly summoned, neither according to the law

of his domicile nor of his habitual residence, unless he had proceeded to the merits;

b. that the decision was taken in violation of fundamental prin

ciples deriving from the Swiss conception of procedural law,

in particular if the party in question was not able to pre

sent his case properly; c. that a dispute between the

same parties and on the same cause of action has already been the object of proceedings

in Switzerland or has been 1. Recognition of a foreign decision must be withheld in Switzerland

if it is manifestly incompatible

with Swiss public policy.

(2) RS O.142.40 (3) RS 142.31

h-? to en 00



judged there already, or has already been judged in a third

State, provided that latter decision can be recognized in

Switzerland.

3. In addition, the foreign decision cannot be the object of a sub

stantive revision.

Article 28

II. Enforceability A decision recognized by virtue of

Articles 25 to 27 shall be declared

enforceable at the request of the

interested party.

Article 29

III. Procedure 1 . The request for recognition or

enforcement shall be brought before the competent authority in the Canton where the foreign decision is going to be invoked.

It must be accompanied :

a. by a complete and authentica ted copy of the decision; b. by a statement certifying that no suspensive appeal can be

filed against it or that it

has become final, and

c. in the case of a default jud gement, by an official docu

ment confirming that the defaulter was duly summoned

and that he was allowed to

present his case properly. 2. The party opposing recognition and enforcement shall be heard;

he shall have the possibility to

submit evidence.

3. If a foreign decision is invoked as a preliminary matter, the authority entertaining the action can decide whether to recognize

it.

Article 30

IV. Compromise

in court Articles 25 to 29 apply by analogy

to a compromise in court approved of by the court in the State in which

it was rendered.

Article 31

V. Ex gratia

jurisdiction Article 25 to 29 apply by analogy to

the recognition and enforcement of a decision or an act of an juris

diction ex gratia.

Article 32

VI. Entry in

the register 1 . A foreign decision or foreign act

affecting family status shall be entered in the register of births, deaths and marriages fol

lowing an order of the supervi

sing Cantonal Authority.

2. Entry is authorized if the requi rements listed in Articles 25 to

27 are met.

3. The persons concerned shall be given a preliminary hearing if it cannot be ascertained that the rights of the parties were duly respected in the course of the

proceedings.

CHAPTER TWO : NATURAL PERSONS

Article 33

I. Principle 1 . Unless provided otherwise in the

present Law, the Swiss judicial or administrative authorities of the domicile have jurisdiction in

matters concerning the law of persons;

they shall

apply the law

of domicile.

2. However, violations of personal interests shall be governed by the provisions of the present Law concerning torts (Article 129 et

seq.) .

h-? ) en



h-? rO o

Article 34 II. Legal capacity 1. Legal capacity is subject to

Swiss Law.

2. The limits of the legal capacity are subject to the legal rela tionship which presupposes the

capacity. Article 35

III. Exercise of

legal capacity

1. Principle The exercise of legal capacity is

governed by the law of domicile. A change of

domicile

does not affect the exercise of legal capacity once

it has been acquired.

Article 36

2. Protection of

transaction 1 . If, according to the law of his

domicile, the party to a legal document is

incapable,

he cannot invoke this lack of capability if he would be capable pursuant to

the law of the State where the legal document was accomplished, unless the

other

party was un aware or should have been aware

of this lack

of legal

capability.

2. This rule does not apply to legal documents affecting family law, inheritance law or property

rights in rem.

Article 37

IV. Name

1 . General 1. The name of any person domiciled

in Switzerland is governed by

Swiss Law, and that of any person

domiciled abroad by the law desi

gnated by the rules of interna

tional private law of the State

in which this person is domici

led.

2. Nevertheless, a person can re

quest that his name be governed

by his national law.

Article 38

2. Change of

name 1 . The Swiss authorities of an

applicant's domicile have juris diction over a request for a

change of name.

2. Swiss citizens not being domici

led in Switzerland can request a change of name from the authority

of their Canton of origin. 3. The conditions and effects of a

change of name are governed by

Swiss law.

Article 39

3.

Change

of

name taken

place abroad A change of name which has taken

place abroad is recognized in Swit zerland if it is valid in the State of domicile or in the applicant's

national

State.

Article 40

4. Entry in

the register The principles applying to the

registers of births, deaths and mar riages in Switzerland govern the entry of a name in the register.

Article 4T

V. Declaration of absence

1. Jurisdiction

and applicable

law 1. The Swiss Courts of the last known domicile of a person who

has disappeared have jurisdiction to issue a declaration of ab

sence .



2. The Swiss

Courts

are also compe

tent to issue a declaration of

absence if this is justified by a

legitimate interest.

3. The conditions and effects of a

declaration of absence are gover

ned by Swiss Law.

Article 42

2. Declaration of absence and of

death occurring

abroad A declaration of absence or of

death, issued abroad, is recognized in Switzerland if it emanates from the State of the last known domicile or from the national State of the

person who has disappeared.

CHAPTER THREE : MARRIAGE Section One : Marriage Ceremony

Article 43

I. Jurisdiction 1 . The Swiss authorities are compe

tent to celebrate a marriage if either the bride or the bride groom is domiciled in Switzerland

or has the Swiss nationality. 2. Foreign couples wishing to marry

who are not domiciled in Switzer land can also be authorized to

marry in Switzerland by the com petent

authority

if their mar riage is recognized in their

State of domicile or in their

national State.

3. Authorization cannot be refused

solely on the grounds that a

divorce rendered or recognized in Switzerland is not recognized

abroad.

Article 44

II. Applicable

law 1. a marriage ceremony in Swit zerland is subject to the sub stantive requirements of Swiss

Law.

2. If the requirements under Swiss Law are not met, a marriage bet

ween foreigners may nevertheless be celebrated, provided it satis fies the conditions outlined in the terms of the national law of

bride or bridegroom.

3. The form of a marriage ceremony

in Switzerland is governed by

Swiss Law.

Article 45

III. Marriage

ceremony held

abroad 1 . A marriage ceremony validly cele

brated abroad is recognized in

Switzerland.

2. If either the bride or the bride groom are Swiss, or if they have their

domicile

in Switzerland, a marriage ceremony held abroad is

recognized unless it was celebra ted abroad

for

the manifest intention of

evading

grounds of nullity under the terms of Swiss

Law.

Section Two : General Consequences of Marriage

Article 46

I. Jurisdiction The Swiss judicial or administrative

authorities of the domicile, or in the absence of

domicile, those of

the habitual residence of one of the

spouses, have jurisdiction over actions brought or to order measures relating to the consequences of the

marriage.

h-* to CT?

h-1



Article 47

Original

judicial competence If the married couple has neither

domicile nor habitual residence in

Switzerland but one of them is

Swiss, the judicial or administra tive authorities of their domicile

of origin have jurisdiction over

actions brought before them and are competent to order measures relating to the consequences of the marriage, if the action cannot be brought or the request cannot be filed with the

authority of the domicile or habi

tual residence of one of the spouses

or, if it cannot be reasonably de

manded that this is done.

Article 48

II. Applicable law

1. Principle 1.

The consequences of a marriage are governed by the law of the

State in which the married couple

is domiciled.

2. If the spouses are not domiciled in the same State, the conse quences of the marriage shall be

governed by the law of the State of domicile with which the issue

has the closest connection.

3. If the Swiss judicial or ad ministrative authorities of the

place of origin have jurisdiction by virtue of Article 47, they

shall apply Swiss Law.

Article 49

2. Maintenance

obligation The maintenance obligation between

husband and

wife

shall be governed by the Hague Convention of 2 Octo

ber, 1973 (4) on the Law applying to

Maintenance Obligations.

Article 50

III. Foreign

decisions or

measures Foreign decisions or measures rela

ting to the consequences of a mar riage are recognized in Switzerland if they have been rendered in the State of domicile or of the habitual

residence of one of the spouses.

Section Three : Matrimonial Regimes

Article

51

I. Jurisdiction The following have jurisdiction over

actions brought, or to order mea sures relating to matrimonial

regimes :

a. when a matrimonial regime is dis solved

following

the death of one of the

spouses,

the Swiss judi cial or administrative authori

ties who have jurisdiction to

settle the estate (Articles 86

89);

b. when the matrimonial regime is dissolved following divorce or judicial separation proceedings, the Swiss

judicial

authorities

who are competent in this area

(Articles 59, 60, 63, 64);

c. in all other cases, the Swiss judicial or administrative au

thorities who have jurisdiction over the consequences of marriage

(Articles 46, 47).

Article

52

II. Applicable law

1. Choice of law

a) Principle 1. The matrimonial regime is gover

ned by the law chosen by the mar

ried couple.

2. The married couple can choose the law of the State in which both

are

domiciled

or shall be domi ciled after their marriage cere mony, or the law of a State of

(4) RS 0.211.213.01

h-4 ) )



which one of the spouses is a national. Article 23, paragraph

2e is not applicable.

Article 53

b) Modalities 1. Choice of law must be done in the

form of an agreement in writing

or must be an explicit conse quence of the provisions included

in the marriage contract, in addition, it is subject to the

chosen law.

2. Choice of law can be made or changed at any time. If the

choice of law is made or changed subsequent to the marriage cere mony, it is retroactive to the date of the marriage in the absence of any agreement to the

contrary.

3. The law chosen shall remain

applicable for as long as the

married couple has not changed or

revoked this choice.

Article 54

2. Failing a

choice of law

a) Principle 1. Failing a choice of law, the

matrimonial regime shall be

governed :

a. by the law of the State in which both

spouses

are domi

ciled together at the same

time, or if this does not

apply:

b. by the law of the country in which both spouses have their

common domicile last of all. 2. If spouses never had common domi

cile, their common national law

is applicable.

3. Married couples who never had

their domicile in the same coun try and who do not have a common

nationality are subject to the

Swiss regime of separate assets.

Article 55

b) Retro-active change of

domicile 1. If a married couple transfers

domicile from one State to ano ther, the law of the new State of domicile is applicable retroacti

vely to the date of the marriage.

The married couple can conclude a written agreement excluding this

retroactivity.

2. A change of domicile has no effect on applicable law if the married couple has agreed in wri ting to maintain the existing law

in force, or if they have drawn

up a marriage contract.

Article 56

Form of mar

riage contract The form of a marriage contract is

valid if it satisfies the legal

conditions applicable to the merits or the law of the place where the

contract was drawn up.

Article 57

Legal relation ship with third

parties 1 . The consequences of the matrimo

nial regime on a legal rela tionship between one of the

spouses and a third party are

governed by the law of the State

in which this spouse was domici led at the time the relationship

began.

2. Nevertheless, these consequences are governed by the law appli

cable to the matrimonial regime if the third party already knew or should have known about this

law at the time the legal rela

tionship began.

h-? )



Article 58

5. Foreign

decisions 1. Foreign decisions governing the

matrimonial regime are recognized

in Switzerland :

a. when they have been rendered or are recognized in the State of domicile of the defending

spouse;

b. when they have been rendered or are recognized in the State of domicile of the plaintiff

spouse and the defending

spouse was not domiciled in

Switzerland;

c. when they have been rendered or are recognized in the State

whose law by virtue of the present Law applies to the

matrimonial regime, or

d. to the extent that they concern

immovable

property, when they have been rendered or are recognized in the State in which the real estate pro

perty is located.

2. Recognition of decisions relating to the

matrimonial

regime taken as a part of a

set

of measures to

protect a marriage or following a death, the

declaration

of a mar

riage annulment, a divorce or a

judicial

separation,

are subject to the provisions of the present Law relating to the general consequences of marriage, divorce or inheritance (Articles 50, 65

and 96).

Section Four : Divorce and Judicial Separation

Article 59

I. Jurisdiction

1. Principle The following Courts have jurisdic

tion in proceedings for divorce or

judicial separation :

a. the Swiss Courts of the domicile

of the defending spouse;

b. the Swiss Courts of the domicile of the plaintiff spouse, if the latter has resided in Switzerland

for at least one year or is a

Swiss national.

Article vQ

2. Original judicial

competence If a married couple is not domiciled

in Switzerland and one of the

spouses is Swiss, the Courts of the domicile of origin have jurisdiction in the proceedings for divorce or

judicial separation if the said action cannot be brought at the

place of domicile of either spouse

of if it is not reasonable to demand

that it should be brought there.

Article v1

II. Applicable law 1 . Divorce and judicial separation

are governed by Swiss law.

2. However, if the spouses have a

common foreign nationality and only one of them is domiciled in

Switzerland, their common na

tional law is applicable.

3. If the common foreign national law does not permit the marriage

to be dissolved or makes this

contingent on extraordinarily

severe conditions, Swiss law is applicable if one of the spouses is also Swiss or if one of the spouses has lived in Switzerland

for at least two years.

4. When Swiss Courts of the place of origin are competent by virtue of Article 60, they shall apply

Swiss Law.

Article S3

1. The Swiss Court seized of an action for

divorce

or judicial separation has jurisdiction to

order provisional measures unless

III. Provisional measures

I?? ) 4^



it lacks jurisdiction over the main suit or its lack of juris diction is apparent from a deci sion which is res iudicata. 2. Provisional measures are subject

to Swiss Law.

3. The provisions of the present Law

are reserved on the maintenance

obligation between spouses (Ar

ticle 49), the effects of filia tion (Articles 82 and 83) and the

protection of minors (Article

85). Article 63

IV. Ancillary

consequences 1 . Swiss Courts having jurisdiction

over a divorce action or judicial separation are equally competent to pronounce on the ancillary

consequences.

2. The law applicable to divorce or judicial separation governs the ancillary consequences of divorce or judicial separation. The pro visions of the present Law are reserved on the question of name (Articles 37 to 40), the obliga

tion maintenance between spouses (Article 49), the matrimonial

regime (Articles 52 to 57), the consequences of filiation (Ar

ticles 82 and

83)

and the protec

tion of minors (Article 85).

Article 64

V. Complementary or amended

decision 1 . Swiss Courts have jurisdiction

over a complementary or amended

divorce decree or judicial se paration if they issued the jud gement in question or are com petent by virtue of Articles 59

or 60. The provisions of the pre sent Law on the protection of minors (Article 85) are reserved.

2. A complementary or amending

action for divorce or judicial separation is governed by the law

applicable to the divorce or judicial separation. The provi

sions of the present Law are reserved on the question of name (Articles 37 to 40), the mainte nance obligation between spouses (Article 49), the matrimonial

regime (Articles 52 to 57), the

consequences of filiation (Arti cles 82 and 83) and the pro tection of minors (Article 85).

Article 65

VI. Foreign

decisions 1 . Foreign decisions on divorce or

judicial separation are recogni zed in

Switzerland

when they were issued in the State of domicile

or habitual residence or in the national State of one of the

spouses or, if these decisions

are recognized in such a State. 2. However, a decision issued in a

State of which neither spouse or only the plaintiff spouse is a

national, is only recognized in

Switzerland if :

a. at the moment the request was lodged, at least one of the spouses was

domiciled or had

his or her habitual residence in this State and the defen ding spouse was not domiciled

in Switzerland;

b. the defending spouse has sub

mitted to the jurisdiction of the foreign court without pre

judice, or

c. the defending spouse has spe cifically

consented

to the decision being recognized in

Switzerland.

h-* ) LU



CHAPTER FOUR : FILIATION

Jurisdiction

1. Principle

2. Original judi

cial competence If the parents arc not domiciliated

in Switzerland and the child has no habitual residence there, the Courts of the Swiss

domicile

of origin of ona of the parents have jurisdiction

in

proceedings

relating to the ascertainment or contest of filia

tion if the action cannot be brought either at the domicile of one of the

parents or at the habitual residence

of the child or if it is not reaso nable to demand that it be brought

there.

Article 68

Applicable

law

1. Principle 1. The declaration of parentage, ascertainment

and contest of filiation shall be governed by

the law of State of habitual

residence of the child.

2. However, if neither parent is domiciled in the State of habi tual residence of the child and

if the parents and the child have

the nationality of one and the

same State,

the

law of this State

shall be applied. Section One : Filiation by Birth

Article vv

The Swiss Courts of the habitual residence of the child or those of

the domicile of one of the parents have jurisdiction in proceedings

relating to the ascertainment or

contest

of

filiation.

Article 67

Article 69

2. Determining

date 1. in order to determine the date applicable to the declaration of

parentage, the ascertainment for contest to filiation, the date of

birth shall be decisive. 2. However, if there is a judicial

ascertainment or contest to the filiation, the date of the claim

shall be the determining factor

if an

overriding interest of the

child so requires.

Article 70

III. Foreign

decisions Foreign decisions relating to ascer

tainment of or contest to filiation shall be

recognized

in Switzerland if they were

issued

in the State of habitual

residence

of the child or

in his or her national State or in the State of domicile or in the

national State of the mother or

father.

Section

Two

: Recognition

Article 71

I. Jurisdiction 1. The Swiss authorities of the

place of birth or habitual resi dence of the child, as well as those of the domicile or domicile

of origin of the mother or father, have jurisdiction in pro

ceedings relating to the recogni

tion of a child.

2. If recognition of a child comes

about in the course of legal pro ceedings in which filiation has judicial significance, the judge seized of

the

case has also jurisdiction over the recogni

tion.

3. The courts having jurisdiction over an action for the ascertain ment of or contest of filiation

to



have also

jurisdiction

over a challenge to recognition (Ar

ticles

66 and 67).

Article

72

II. Applicable

law 1. Recognition in Switzerland can be

conducted in accordance with the law of the State of habitual

residence of the child, the law

of his or her national State, the

law of domicile or the law of the national State of the father or

mother. The date of recogni tion is the determining factor. 2. The form of

recognition

in Swit zerland is governed by Swiss Law. 3. Contest to

recognition

is gover

ned by Swiss Law.

Article

73

III. Recognition established or

contested abroad 1 . When the recognition of a child

is established abroad, it is

recognized in Switzerland if it is valid in

the State

of habitual

residence of the child, in his national State, in the State of

domicile or in the national State

of the father or mother.

2. Foreign

decisions

on contest to recognition are recognized in Switzerland if they have been

issued in one of the countries specified in

the

first paragraph.

Article 74

IV. Legitimation

By way of analogy Article 73 applies

to foreign legitimation.

Section Three : Adoption

Article 75

Jurisdiction

1. Principle 1. The Swiss judicial or administra

tive authorities of the domicile

of the

adopting

party or spouses

have jurisdiction to order an

adoption.

2. The Courts having jurisdiction over actions relating to the ascertainment of or the contest to filiation have also jurisdic

tion to order an adoption (Ar

ticles 66 and 67).

Article 76

2.

Jurisdiction

of

the domicile of

origin 1. The Swiss judicial or administra

tive authorities of the domicile

of origin

have jurisdiction to

make an adoption order if the adopting party or spouses are not domiciled in Switzerland and one of the spouses is Swiss and if

they cannot

adopt

at their domi cile abroad, or it would not be reasonable to demand that they

enter into adoption proceedings

there.

Article

77

Applicable

law 1 . An adoption order made in Swit

zerland is subject to Swiss Law. 2. If it becomes evident that an

adoption

would

not be recognized in the State of domicile or in the national State of the adop

ting party or spouses and the result would be highly preju dicial to the child, the autho rity shall also take into account

the

conditions

imposed by the law

of the State in question. If, despite this, the recognition

does not seem to be assured, the adoption order must not be made.



3. An action to annul an adoption order made in Switzerland is gov erned by Swiss Law. An adoption

declared abroad cannot be annul led in Switzerland unless there is a reason in Swiss Law for

annulment.

Article 78

III.

Adoptions

and

similar arrangements

under foreign law 1 . Adoptions which have taken place

abroad are recognized in Switzer land when they have been made in the State of domicile or the

national State of the adopting

party or spouses.

2. Adoptions or similar arrangements under foreign law having conse quences basically different from the filiation under the terms of

Swiss Law are only recognized in

Switzerland to such an extent

that they have the same effects as in the State where they were

pronounced.

Section Four : Consequences of Filiation

Article 79

I. Jurisdiction

1. Principle 1. The Swiss Courts of the habitual

residence of the child or those of his or her domicile and, fai

ling a domicile, those of the habitual residence of the defen

ding parent have jurisdiction over an action concerning rela

tions between parents and child, in particular a claim relating to

the maintenance of the child. 2. The provisions of the present Law

relating to

name

(Article 33, 37

40), the protection of minors (Article 85) and inheritance (Ar

ticles 86-89) are reserved.

Article 8Q

2. Jurisdiction Domicile of

origin If neither the child nor the defen

ding parent have a domicile or habi tual residence in Switzerland and one of them is Swiss, the Courts of the domicile of origin have juris

diction. Article 81

3. Claims by

third parties Swiss Courts designated by Articles

79 and 80 have also jurisdiction : a. over requests for maintenance

payments emanating from authori ties who have provided advances;

b. over requests by the mother for

maintenance payments and reimbur sement of expenses resulting from

the birth of a child.

Article 8?

IL Applicable law

1. Principle 1 . Relations between parents and

child are governed by the law of

the State of habitual residence

of the child.

2. However, if neither of the

parents is domiciled in the State of habitual residence of the child and if the parents have the

nationality of one and the same State, the law of this State

shall apply.


on name (Articles 33, 37-40), the protection of minors (Article 85)

and inheritances (Articles 90-95)

are reserved.

Article 83

2. Maintenance

1 . The maintenance obligation bet ween parents and child is gover

ned by The Hague Convention of

I?1 to oo



October 2, 1973 (5) on the Law

applying to Maintenance Obliga

tions .

2. To the extent that the mother's rights to maintenance and the reimbursement of expenses caused by the birth of a child are not

covered by the aforesaid Conven tion, its provisions shall be

applied by analogy.

Article 84

III. Foreign

decisions 1 . Foreign decisions on the relation

between parents and child are

recognized in Switzerland if they have been rendered in the State of habitual residence of the

child or in the State of domicile or habitual residence of the de

fending parent.


on name (Article 39), protection of minors (Article 85) and inhe ritances (Article 96) are reser

ved.

CHAPTER FIVE : GUARDIANSHIP AND OTHER

PROTECTIVE MEASURES

Article 85

1. Where the protection of minors is concerned, the competence of the

Swiss judicial or administrative

authorities, applicable law and recognition of decisions or mea sures taken abroad are governed by the Hague Convention of Octo ber 5, 1961 (6) on the Juris diction and Law applying to Pro

tection of Minors.

2. By analogy, this Convention applies to persons who are of age

or who are minors only in the

sense of

Swiss

Law or to persons

who do not have their habitual

residence in one of the contrac

ting states.

3. The Swiss judicial or administra tive

authorities

have jurisdic

tion if their competence is

required to

protect

a person or

his property.

CHAPTER SIX : INHERITANCES

Article

86

I. Jurisdiction

1. Principle 1. The Swiss judicial or administra

tive authorities of the last

domicile of the deceased are com petent to take the necessary mea sures to settle the estate and to adjudicate on

any successional

disputes.

2. The exclusive competence claimed by the State in which immovable

property is

located

is reserved.

Article 87

2.

Jurisdiction

of

the domicile

of origin 1. The judicial or administrative

authorities of the domicile of

origin of the deceased have

jurisdiction over the succession

of a Swiss national domiciled

abroad when he dies, to the

extent that the relevant foreign authorities do not engage them

selves in this respect.

2. The authorities of the domicile

of origin are

always

competent if a Swiss whose last domicile was

abroad

submits

all of his estate situated in Switzerland to the competence of the Swiss Courts or

to Swiss law

in

his last will or inheritance

agreement.

Article

86,

paragraph

2

is reserved.

(5) RS 0.211.213.01 (6) RS 0.211.231.01

)



Article 88

3. Jurisdiction of

the situation of

the assets 1 . If a foreigner who is domicilia

ted abroad leaves assets in Swit zerland when he dies, the Swiss judicial or administrative autho rities of the place where these are located, are competent to adjudicate on the proportion of

the inheritance which is located in Switzerland, to the extent

that the foreign authorities do

not hear the case.

2. If the assets are in different locations, the Swiss authority

first seised has jurisdiction.

Article 99

4. Safeguarding

measures If the deceased had his last domi

cile abroad and left assets in Swit zerland, the Swiss authorities of the location of these assets shall take the necessary measures for pro

visional safeguarding thereof.

Article 90

II. Applicable law

1. Last domicile

in Switzerland 1 . The estate of an person who had

his last domicile in Switzerland

is governed by Swiss Law.

2. A foreigner can however, submit his estate to the law of one of his national states by way of a

last will or inheritance agree

ment. This choice is null and void if and when, at the time of death, the person so disposing no

longer had the nationality in

question or had acquired Swiss

nationality.

Article 91

2. Last domicile

abroad 1 . The inheritance of a person who

had his or her last domicile

abroad, is governed by the law

designated by the provisions of

international private law of the

State in which the deceased was

domiciled.

2. To the extent that the Swiss

judicial or administrative autho rities are competent by virtue of

Article 87, the inheritance of a

Swiss national who is deceased

and who had his or her last domi cile abroad, is governed by Swiss Law unless, by way of last will or inheritance agreement, the

deceased opted specifically for the law of his or her last domi

cile . Article 92

3. Estate and

liquidation 1 . The Law applicable to the estate

determines what the estate consists of, who is nominated to inherit, in what proportion and

who is responsible for any inhe rited debts, which inheritance

law institutions can be invoked, what measures can be decreed and on what terms and conditions.

2. The modalities of execution are

governed by the competent autho rity. This law governs in parti cular the safeguarding and liqui dation measures, including the

execution of a will.

Article 93

4. Form 1 . As to the form, the validity of

wills and testament is governed by The Hague Convention of Octo ber 5, 1961 (8) on Conflicts of

Laws concerning the Form of tes

tamentary provisions.

2. This Convention applies by ana

logy to the form of other provi sions made in the event of death.

(8) RS 0.211.312.1

I?1 O



Article 94

5. Capacity

for disposal A person may dispose of assets in

the event of his death if, at the moment of disposal, he is entitled to do so by virtue of the law of his State of domicile or habitual resi dence, or by virtue of the law of one of the national states involved.

Article 95

6. Inheritance agree ments and other reciprocal arrange

ments in the event

of death 1

An inheritance agreement is governed by the law of the State

in which the person making the disposal is domiciled at the mo ment the agreement is concluded.

If, in such an agreement, the

person submits all his assets to

the law of his national State,

this law shall apply instead of the law of his place of domicile.

Reciprocal arrangements in the event of death are valid if they are conform to the law governing

the domicile disposal or to the

law of a common national State

selected by the parties.

The provisions of the present Law on form and capacity (Articles 93

and 94) are reserved.

Article 96

Decisions, measures, documents and

foreign laws 1 . Decisions, measures or documents

relating to an estate, as well as

rights deriving from an estate

abroad are recognized in Switzer

land :

a. if they have been rendered, taken, drafted or ascertained

in the State of the last domi cile of the deceased or in the State whose law the deceased

has adopted for inheritance purposes or if these arrange

ments are recognized in one of

this

countries,

or,

b. if they

relate

to immovable property and

have been rende red, taken, drafted or ascer tained in the State in which the property in question is located or

if

they are recog

nized in this State.

2. If an

immovable

property is lo

cated in a State which claims exclusive jurisdiction, only the decisions, measures or documents issuing from that State shall be

recognized.

3. Safeguarding measures taken in

the country

in

which the assets of the

deceased

are located, are

recognized in Switzerland.

CHAPTER SEVEN : RIGHTS IN REM

Article

97

I. Jurisdiction

1. Immovable

property The Courts of the location of any

immovable

property

in Switzerland

have exclusive jurisdiction

over actions in rem concerning immovable

property. Article 98

2. Movables 1. The

Swiss

Courts of the domicile

or, failing any domicile, those of the

habitual

residence of the defending party have jurisdiction to hear

actions

in rem concerning

Movables.

2. If the defending party has nei ther domicile nor habitual resi dence in

Switzerland,

the Swiss Courts of

the place

in which the assets are located have com

petence.

h-1 <! h-1



Article 99

II. Applicable law

1 . Immovables 1 . Rights in rem in respect of

imMovables are governed by the

law of the location of the

immovable property.

2. Claims deriving from interference

in respect of immovable property are governed by the provisions of the present Law in respect of

torts (Article 138).

Article

100

2. Movables

a) Principle 1 . Acquisition and loss of rights in

rem concerning movables are governed by the law which is in

force where the movable asset is situated when the decisive fact on which the acquisition or the

loss is based, took place. 2. The

contents

and exercise of

rights in rem in respect of movable assets are governed by the law of

the location of the movable asset

in question.

Article 101

b) Goods in

transit Acquisition and loss by way of legal

documents of rights in rem in respect of goods in transit are governed by the law of the State of destination.

Article 102

c) Goods

transported in

Switzerland 1. If a

movable

has been transported

from abroad into Switzerland, and

the acquisition or loss of rights

in rem did not come about yet abroad, the facts taken place

abroad shall be deemed to have

taken place in Switzerland.

2. If and when an asset subject to a valid reservation of title arrives in Switzerland, but the

reservation does not meet the requirements under Swiss law, it nevertheless remains valid for a

period of three months.

3. Such a reservation of title can not be imposed on a third party

acting

in

good faith.

Article 103

d) Property

reservation of

title for

export A reservation of title imposed on a

movable asset destined for export is governed by

the

law of the State of

destination. Article 104

e) Jurisdiction

clause 1. Parties can submit the acquisi

tion and loss of rights in rem in respect of movable assets to the law of the State of origin or of

destination or to the law which

governs the

basic

underlying

legal document.

2. A choice of law cannot be imposed

on a third party.

Article 105

3. Special rules a) Pledgery of

claims, secu

rities or

other assets 1. The

pledging

of claims, securi

ties or other assets are governed by the law

chosen

by the parties. This choice of law may not be

imposed on third parties.

2. If no such choice is made, the pledging of claims or securities

is governed by the law of the

State of habitual residence of

the creditor who makes the

pledge; the pledging of other assets is governed by their

applicable law.

h-1



3. The debtor

cannot

be confronted by a law other than the one which

governs the asset pledged.

Article 106

b) Documents

representative

of goods 1. The law

specified

in a document

shall determine whether this document

actually

represents the goods in question. If no such law is specified, the question shall be governed by the law of the

State in which the issuer of the document has his place of busi

ness.

2. If and when the document repre sents the goods, rights in rem in respect of the document and the goods are governed by the law applying to the document as a

movable asset.

3. If and when

several

persons claim rights in rem in respect of the goods, some

directly

and others by virtue of a document, the law applying to the goods shall determine which rights shall pre

vail . Article 107

c) Means of

transport Those provisions of other laws rela

ting to rights in rem in respect of ships,

aircrafts or other means of

transport are reserved.

Article

108

Foreign

decisions 1 .

Foreign

decisions in respect of

rights in rem relating to immovables are recognized in

Switzerland

when they are

rendered in

the State in which

the asset is

located

or when they

are recognized in this State.

2. Foreign decisions in respect of rights in rem relating to movable assets are

recognized

in Switzer

land :

a. if and when they have been rendered in the State of domi cile of the defending party; b. if and

when

they have been rendered in the State in which the assets

are

located, provi ded the defending party has his habitual residence there,

or

c. if and when they have been rendered in the State desig

nated in the jurisdiction

clause.

CHAPTER EIGHT : INTELLECTUAL PROPERTY

Article 109

I. Jurisdiction 1 . The Swiss Courts of the domicile

of the defending party or, fai

ling such domicile, those of the location where protection is

sought, have jurisdiction in pro ceedings involving actions rela ting to intellectual property

rights. Exceptions are claims for the registration or validation of intellectual property rights

abroad.

2. If a claim can be brought against

several

defendants

in Switzerland and the

claims

are based, in essence, on

the same facts and legal

grounds,

the action can be brought against all before one

and the same

competent

judge; the first Court

seized

of the action shall have exclusive juris

diction.

3. If a

defending

party has no domi cile in Switzerland, action in respect of

registration

or vali dation in

Switzerland

of intel lectual property rights, shall be

brought

before

the Swiss Courts

to



to

of the seat of the registered

representative or, failing this, before the Courts of the location where the

authority

who is res ponsible for the register is sea

ted. Article 110

II. Applicable law 1 . Intellectual property rights are


for which intellectual copyright

protection is sought.

2. As to claims arising out of vio

lation of intellectual property rights, the

parties

can always agree, after the harmful event,

to apply the lex fori.

3. Contracts involving intellectual property are governed by the pro

visions of the present Law rela ting to contracts (Article 122).

Article 111

III. Foreign

decisions 1 . Foreign decisions in respect of

violation of

intellectual

pro perty rights are recognized in

Switzerland :

a. if and when the decision has

been rendered in the State of

domicile of the defending

party, or

b. if and when the decision has been rendered in the State for which

intellectual

copyright protection is sought with the

defending party having no domicile in Switzerland.

2. Foreign decisions on the exis

tence,

validity or registration of

intellectual

property rights are only recognized if they have

been

rendered

in a State for

which

intellectual

copyright pro tection is sought or if they are

recognized there.

CHAPTER NINE : LAW OF OBLIGATIONS

Section One : Contracts

Article 112

I. Jurisdiction

1 . Principle 1. The Swiss Courts of the place of

the domicile or, failing such domicile, those of the habitual

residence of

the defending party have

jurisdiction

over actions

arising

from

a

contract.

2. The Swiss Courts of the place of

business of the defending party

have jurisdiction over the actions relating to an obligation which derives from the operation

of this establishment.

Article 113

2. Place of

execution When the defending party has neither

domicile or habitual residence nor a place of business in Switzerland, but the litigious performance must be executed in

Switzerland,

action can be taken

before

the Swiss Court of the place of execution of the

contract. Article 114

3. Contracts

concluded with

consumers 1. In

contracts

meeting the condi

tions

specified

in Article 120, paragraph 1, action may be

brought by a consumer, at his discretion, before the Swiss

Court;

a. of his

domicile

or habitual

residence, or

b. of the domicile, or failing such

domicile,

of the habitual residence of the supplier.



2. The consumer may not renounce the jurisdiction of the judge of his

domicile or habitual residence in

advance. Article 115

4. Labour

contracts 1. The

Swiss Courts of the domicile

of the defending party or of the location where the worker habi

tually

performs

his work, have jurisdiction over actions rela ting to his

labour

contract. 2. Action

brought

by a worker can

also be brought before the judge of his

domicile

or habitual resi

dence in Switzerland.

Article 116

II. Applicable law

1. In general

a) Choice of law 1. The contract shall be governed by

the law chosen by the contracting

parties.

2. Choice of law must be explicit or result clearly from the provi

sions of the

contract

or the cir cumstances of the case; in addi tion it is governed by the chosen

law.

3. Choice of law can be made or

changed at any time. If it occurs

after a contract has been conclu ded, it is retroactive to the moment of the conclusion of the

contract.

Rights

of third parties

are reserved.

Article 117

b) Failing choice

of law 1 . Failing choice of law, the

contract is governed by the law of the

State with which it has

the closest connection. 2. These connections are deemed to

exist with

the State

in which the party performing the characteris tic obligation has his habitual

residence or, if the contract is

concluded in the course of pro

fessional or

commercial

activi ties, has his place of business.

3. The following is specifically

intended by the reference to the

characteristic

performance :

a. the

performance

of the trans

fer ror

in

a transfer;

b. the performance of the party who grants the use of an ob

ject or right in contracts re lating to the use of an object

or right;

c. the

performance

of service

under an

agency

contract, a labour contract or other contracts

providing

for ser

vices;

d. the performance of the deposi

tory, in a deposit contract;

e. the performance of a bailee or gurarantee in a contract of

guarantee or

indemnity.

Article 118

2. In particular

a) Sale of

movable

assets 1. Sales of movable assets are

governed by

the

Hague Convention of 15 June 1955 (9) on the law

applying to International Sales

of Movable Property. 2. Article 120 is reserved.

Article 119

b) Immovables 1. Contracts relating to immovables

or the use thereof are governed

by the lex situs.

2. A choice of law may be made.

(9) RS 0.221.211.4

) en



3. However, the form of the contract is governed by the law of the State in which the immovable asset is located, unless this law allows the application of some

other law. As to an immovable asset located in Switzerland, the form of the contract is governed

by Swiss law.

Article 120

c) Contracts

concluded with

consumers 1 . Contracts relating to goods or

services provided for current consumption or personal or family use by the consumer which have no

connection with the professional or commercial activity of the consumer are governed by the law

of the State of habitual resi

dence of the consumer :

a. if and when the supplier received the order in that

State;

b. if and when the conclusion of the contract was preceded by

an offer or an advertisement

in that State and the consumer carried out the actions neces sary to conclude the contract,

or

c. if and when the consumer was invited by his supplier to go

to a foreign State for the purpose of placing the order

there.

2. No choice of law may be made.

Article 121

d) Labour

contracts 1 . A labour contract is governed by

the law of the State in which the worker habitually carries out his

work.

2. If the worker habitually performs his work in several countries,

the labour contract is governed by the law of the State in which

the employer has his place of business or, failing such place,

latter's domicile or habitual

residence.

3. The contracting parties can sub

mit a labour contract to the law of the State in which the worker

has his habitual residence, or in which the employer has his place of business, his domicile or ha

bitual residence.

Article 122

e) Contracts relating to

intellectual

property 1. Contracts relating to intellec

tual property are governed by the law of the State in which the party who transfers or concedes

the intellectual property right has his habitual residence. 2. A choice of law may be made.

3. Contracts concluded between an

employer and a worker concerning

intellectual property rights in respect of inventions which the

worker has made as part of his work duties are governed by the

law applicable to the labour

contract.

Article 123

3. Common

provisions

a) Silence fol

lowing receipt

of an offer A party that does not respond to the

offer to conclude a contract can request that the consequences of his

silence shall be governed by the law of the State in which he has his

habitual residence.

Article 124

b) Form 1. As to its form, a contract is

valid if it satisfies the condi

tions laid down by the law ap plying to the contract or by the

h-1 ) C7>



law of the place where it was

concluded.

2. The form of a contract concluded

between persons who are in diffe rent countries is valid if it

meets the requirements laid down under the terms of the law of one

of these countries.

3. The form of a contract is exclu

sively governed by the law ap

plying to the contract itself if, in order to protect a contracting party, this law prescribes com pliance with a particular form,

unless this law allows for the

application of some other law.

Article 125

c) Modalities of execution or

verification The modalities of execution or veri

fication are governed by the law of the State in which they are actually

effected. Article 126

d) Agency 1 . When agency depends on a

contract, the relations between the principal and the agent are governed by the law applying to

their contract.

2. The conditions on which the acts

of the agent bind the principal and the third party to the contract are governed by the law

of the State of the agent's place

of business or, if there is no such place or it is not yet recognizable by the third party to the contract, by the law of the State in which the agent has his main activities involved in

this particular case.

3. If the agent is bound to the

principal by a labour contract and he has no place of business of his own, his establishment is

deemed to be located at the seat

of the principal.

4. The law specified in paragraph 2 also governs relations between a agent with no authorisation and a

third party.

Section Two : Unjust Enrichment

Article 127

I. Jurisdiction The Swiss Courts of the domicile or,

failing such domicile, those of the habitual residence or place of busi

ness of the defending party have jurisdiction over actions concerning

unjust

enrichment.

Article 128

II. Applicable law 1 . Claims concerning unjust enrich

ment are governed by the law governing the

judicial

relation ship existing or deemed to exist,

by virtue of which the enrichment

occurred.

2. In the absence of any such rela

tionship, these claims are gover ned by the law of the State in which the unjust enrichment took place; the parties can agree on

the application of the lex fori.

Section Three : Torts

Article 129

I. Jurisdiction

1 . In general 1 . The Swiss Courts of the place of

domicile or, failing such domi cile, those of the habitual resi dence or place of business of the defending party have jurisdiction over actions concerning torts.

2. If the defending party has nei

ther domicile or habitual resi dence nor a place of business in Switzerland, the claim can be

brought before the Swiss Court of the location where the act took place or the dammage was suffe

red.

h-?



3. If claims can be brought against several defendants in Switzerland and if the claims are founded in essence on the same facts and legal grounds, claim can be taken

before the same judge; the first judge seized of the action shall

have exclusive jurisdiction.

Article 130

?. In particular 1 . The Swiss Courts of the place

where the harmful event occurred have jurisdiction over actions brought in relation to the damage caused by a nuclear installation or as a result of the transport

of nuclear substances.

2. If the place cannot be determi

ned, action can be brought :

a. if and when the liability is incumbent on the operator of a nuclear installation, before the Swiss Courts of the place

where this installation is

located;

b. if and when the liability is incumbent on the holder of a transport authority, before the Swiss Courts of the domi

cile of the holder of this

authority, or has elected

domicile.

Article 131

3. Claim

against the

insurer A claim against the insurer for

third party liability can be brought with Swiss Courts, either those of his place of business in Switzer land, or those of the place where the act took place or the dammage

was suffered.

Article 132

II. Applicable law

1. In general

a) Choice of law Parties can agree on the application

of the lex fori at any time after the

occurrence of the harmful event.

Article 133

b) Failing choice

of law 1. When the tortfeasor and the inju

red party have their habitual

residence in the same State, claims based on tort are governed

by the law of that State.

2. When the tortfeasor and the inju

red party have no habitual resi dence in the same State, these claims are governed by the law of

the State where the tort was com

mitted. However, if the result occurred in another State, the

law of this State shall be applied if the tortfeasor could have foreseen that the dammage would be suffered in that State.

3. Notwithstanding the preceding paragraphs, if and when a tort

violates a judicial relationship between the tortfeasor and the

injured party, claims based on this act are governed by the law applying to this judicial rela

tionship.

Article 134

2. In particular

a) Road traffic

accidents Claims resulting from road traffic

accidents are governed by the Hague

Convention of 4 May 1971 (10)

concerning the law applying to road

accidents.

(10) RS 0.741.31

) 00



Article 135

b) Product

liability 1 . The injured party has the choice

to have the claim based on a fault or defect or a defective description of

a product governed

by :

a. the law of the State in which the tortfeasor has his place

of business or, failing such place, his habitual residence

or

b. the law of the State in which the product has been acquired, unless the tortfeasor can

prove that the product was

sold in this State without his

consent.

2. If claims based on a fault or

defect or a defective description of a product are governed by a

foreign law, no compensation can be awarded in

Switzerland

other

than the compensation that would be granted for such damage pur

suant to Swiss Law.

Article 136

c) Unfair

competition 1. Claims based on an act of unfair

competition are governed by the law of the State on whose market

the result occurred.

2. If the act affects exclusively the company interest*; of a particular competitor, the law

applying shall be that of the seat of the injured party. 3. Article 133 paragraph 3 is reser

ved. Article 137

d) Restriction of

competition 1. Claims based on an restriction of

competition

are

governed by the law of the State on whose market

the restriction produces its effects on

directly

the injured

party.

2. If claims based on restriction of competition are governed by

foreign law if it is not possible to have any other damages awarded in Switzerland that those which would be granted in compensation for restriction of competition by

virtue of Swiss Law.

Article 139

e) Interference Claims based on harmful interference

deriving from an immovable asset are governed, at the discretion of the

injured party, by the law of the

State in which the immovable asset is located, or by the law of the

State in which the dammage was suf

fered.

Article 139

f) Defamation

of character 1. The injured party has the choice

to have his action, based on a defamation of character by the media, in particular by the press, radio, television or any other public information medium,

governed by :

a. the law of the State in which the injured party has its habitual residence, provided that the tortfeasor could have expected the result to occur

in this State;

b. the law of

the State in which

the

tortfeasor

has its place

of business

or

habitual resi

dence , or

c. the law of the State in which the dammage was suffered, pro vided that the tortfeasor

could have expected the dam mage to be suffered there.

2. The right of reply to media of periodical character is governed

exclusively

by the law of the

h-1 )



State in which the publication took place or the transmission

was made.

Article 140

3. Special rules a) Joint tort

feasors If a number of persons participate

in a tort, the law applying shall be

determined separately for each of them whatever their role may have

been.

Article 141

b) Claim against

the insurer The injured party can bring a claim

against the insurer of the liable person if the law applying to the

tort or the law applicable to the

insurance contract has such provi

sion.

Article 142

4. Scope of

application 1. The law applicable to a tort

determines in particular the ca pacity of the liable person to

judge the illicit character of

his acts and to act accordingly,

the conditions and extent of lia bility as well as the person of

the tortfeasor.

2. The regulations on security and behaviour in force at the loca

tion of the act are taken into

consideration.

Section Four : Common Provisions

Article 143

I. Multiple debtors

1. Claims against

several debtors When a creditor can bring his claim

against several debtors, the judi cial consequences are determined by virtue of the law governing the

relations between the creditor and the debtor being pursued in law.

Article 144

2. Recourse against

joint debtors 1. A debtor has only a right of

recourse against a joint debtor,

directly or by way of subroga tion, to the extent that the laws governing the two debts permit

this.

2. Exercise of a right of recourse against a joint debtor is gover ned by the law applicable to the

joint debtor's debt to the credi tor. Questions exclusively concerned with relations between the creditor and the debtor taking recourse action are gover

ned by the law applying to the

latter's debt.

3. The faculty of an institution with a public mission to exercise its right of recourse is determi

ned by the law applying to this institution. Admissibility and

exercise of a right of recourse are governed by the two preceding

paragraphs.

Article 145

II. Transfer of claims

1. Contractual

assignment 1 . The contractual assignment of

claims is governed by the law chosen by the parties or, failing such choice, by the law applying to the claim assigned; the choice

made by the assignor and the

assignee cannot be imposed on the debtor without his approval.

Article 146

2. Legal

assignment 1. The legal assignment of claims is

governed by the law applying to the original relationship between the former and the new creditor and, failing such relationship, by the law which governs the

claim.

h-* ) 00 O



2. Legal provisions in respect of

the claim designed to protect the

debtor are reserved.

Article 147

III. Currency 1 . Currency is defined by the law of

the issuing State.

2. The effects produced by a cur rency on the amount of a debt are determined by the law applying to

that debt.

3. The law of the State in which the

payment must be made determines

the currency of the payment.

Article 148

IV. Time-barring and extinction

of claims 1 . The law applying to a claim

governs time-barring and extinc

tion thereof.

2. If extinction occurs by way of

compensation, the law applicable is that which governs the claim

for which the compensation is

provided.

3. Renewal, remission of debt and a

contract for compensation are governed by the provisions of the present law relating to the law

applicable to contracts (Article

11 6 et seq. ) . Section Five : Foreign Decisions

Article 149

1. Foreign decisions relating to a claim deriving from the law of obligations shall be recognized

in Switzerland :

a. if they have been rendered in the State of domicile of the

defending party, or

b. if they have been rendered in

the State of

habitual

resi dence of the defending party, provided the claims relate to an activity carried out in

this State.

2. They also are recognized :

a. in the case of a decision re

lating to a contractual obli

gation, when it has been ren dered in the State of execu tion and the defendant is not

domiciled in Switzerland; b. in the case of a decision

relating to a claim in respect of a contract concluded with a

consumer, when it has been

rendered at the domicile or habitual residence of the

consumer and the conditions outlined in Article 120, first

paragraph, are satisfied; c. in the case of a decision

relating to a claim which de rives from a

labour

contract, if it has been rendered either at the place of execution or, at the place

of work, and the worker is not domiciled in

Switzerland;

d. in the

case

of a decision

relating to a claim which derives

from

the running of a business, if it has been ren dered at

the seat of that

business;

e. in the case of a decision

relating to unjust enrichment, if it has been rendered at the place where the act took place

or the result occurred and the defendant is not domiciled in

Switzerland;

f. in the case of a decision

relating to a liability in tort, if it

has

been rendered at the location where the act took place or the result

occurred, and the defending

party is not domiciled in

Switzerland.

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CHAPTER TEN : COMPANIES

Article 150

1 . Definitions 1. For the purposes of the present

Law, the definition of a company is any organized association of persons and

any

organized asset

structure.

2. Partnerships not having a judi cial organization are governed by the provisions of the present Law

in respect of the law applying to contracts (Article 116 et seq.).

Article 151

Jurisdiction

1. Principle 1. When company law disputes occur,

the Swiss

Courts

of the seat of

the company

have

jurisdiction over actions

brought

against the company, the partners or the per sons liable under company law. 2. The Swiss

Courts

of the domicile or, failing such domicile, those

of the habitual residence of the defendant have also jurisdiction over actions

brought against a partner or

shareholder

or any other person

who

is liable under

company law.

3. Notwithstanding a jurisdiction

clause, the

Swiss

Courts of the location where a public issue has taken place, have also jurisdic tion over an action concerning

the

liability

for shares and loan

certificates.

Article 152

2. Liability

for a foreign

company The

following

have jurisdiction over

actions brought against a person who is liable by virtue of Article 159

or against a foreign company on

whose behalf this person acts :

a. the Swiss Courts of the domicile or, failing such domicile, those

of the habitual residence of the

defendant, or

b. the Swiss

Courts

of the place where the company is managed de

facto. Article 153

3.

Protective

measures Measures designed to protect assets

located in

Switzerland

of companies having their

seat

abroad, are within the competence of the Swiss judicial

or administrative authorities of the

place where the assets requiring

protection

are located.

Article

154

III. Applicable law

1 . Principle 1 . The

organization

of a company is


which governs the requirements concerning the public notifica tion or

registration

procedures laid down by this law or, in the absence of such procedures, if they are organized in accordance

with the law of that State. 2. A company

which does not satisfy these conditions is governed by

the law of

the

State

in which it

is managed de facto.

Article 155

2. Scope of

application Subject to Articles 156-161, the law

applying to a company governs in

particular

:

a. the judicial nature of the com

pany;

b. its place of business and

dissolution;

c. capacity;

J?1 ) 00



d. the company name or style;

e. the organization;

f. internal relations, especially relations between the company and

its members;

g. liability for infringement of the legal regulations affecting com

panies;

h. liability for the debts of the

company;

i. the duties of the agents who act

on behalf of the company in accordance with its organization.

Article 156

Special connections

1. Claims deriving

from the public issue of shares and loan certi

ficates

Claims deriving from the issue of

shares and loan certificates by way of prospectuses, circulars or other analogue publications are governed by the law of the State of issue.

Article 157

2. Protection of name and

company style 1 . Protection of the name and com

pany style of companies entered in the Swiss commercial register

against attacks made in Switzer land is governed by Swiss Law. 2. Failing an entry in the Swiss

Register of Commerce, protection of a name and company style is

governed by the law applying to unfair

competition

(Article 136) or defamation of character (Ar

ticles 132, 133 and 139).

Article 1$8

3. Restriction on powers of

agency A company cannot invoke restrictions

on the power of agency which are unknown in the law of the State in which the other party has its place of business or has its habitual re

sidence unless the other party knew or could have known of these res

trictions. Article 15?

4. Liability

for a foreign

company If a company established under

foreign law conducts operations in Switzerland or from Switzerland, the liability of the persons who act on behalf of this company is governed

by Swiss Law.

Article 160

Branch offices

of foreign

companies in

Switzerland 1 . A company having a seat abroad

can have a branch office in Swit zerland. This branch office is

governed by Swiss Law.

2. Swiss Law governs the power of

agency of such a branch office. At least one of the persons who

act as agents on behalf of these branch offices must be domiciled in Switzerland and be entered in

the Register of Commerce.

3. The Federal Council shall lay down the modalities of compulsory

registration in the commercial

register.

Article 161

Transfer of a company from

abroad to

Switzerland 1 . If foreign law governing it so

allows, a foreign company can

submit itself to Swiss Law

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without liquidation or the esta blishment of new Articles of

Association. It must meet the conditions set by the foreign law

and must be

capable

of adaptation to one of the forms of organiza

tion prescribed in Swiss Law.

Article 1v2

2. Determining

moment 1. A

company

which by virtue of

Swiss Law is

obliged

to have an entry in the

Commercial

Register is governed by Swiss Law as soon as it has

proved

that its main business activities have been

transferred to Switzerland and

that it has adapted to one of the forms of organization prescribed

in Swiss Law.

2. A company

which

by virtue of Swiss Law is not obliged to have

an entry in the Commercial

Regis

ter is governed by Swiss Law as soon as its desire to be governed

thereby appears clearly, that it is sufficiently connected with

Switzerland

and that it has adap

ted to one of the forms of orga nization

prescribed

in Swiss Law. 3. Before it

can

be registered, a company with a share capital must prove that its

capital is adequa

tely covered in accordance with Swiss Law, by the production of an official

audit

report issued by an auditor recognized

by the

Federal Council.

Article 163

VII. Tranifer of

a company from Switzerland to

abroad

1. Principle 1. Without liquidation or the esta

blishment of new Articles of Association,

a Swiss company can submit

itself

to foreign law, by

proving

:

a. that it has satisfied the

conditions laid down by Swiss

Law;

b. that it continues to exist under the terms of the foreign

law, and;

c. that it has informed its cre ditors by way of public no tice, inviting them to make any claims known and informing them of the planned change in

the legal status of the com

pany.

2. The provisions relating to safe guarding measures in cases of

international disputes on the

lines of Article 61 of the Fede ral Law of 8 October 1982 (10) on the economic supply of the coun

try are reserved.

Article 164

2. Company debts 1. A foreign company registered in

Switzerland in the Commercial Register cannot be removed from

that Register unless the appli cant makes it probable that the creditors have been satisfied or their claims

guaranteed,

or that they agree to the removal from

the Register.

2. Proceedings can be brought in

Switzerland if creditors have not

been

satisfied

or their claims

guaranteed.

Article 165

VIII. Foreign

decisions 1 . Foreign decisions which relate to

a claim based company law are

recognized in Switzerland :

a. if and when they have been rendered or are recognized in the State in which the company

(10) RS 531

h-1 to 00



has its seat and the defendant is not domiciled in Switzer

land,

or

b. if and when they have been rendered in the State of domi cile or habitual residence of

the defendant.

2. Foreign decisions relating to claims connected to the public

issue of shares and loan certifi

cates by way of prospectuses,

circulars or other analogue

publications are recognized in Switzerland if they have been

rendered in the State in which the public issue of shares or loan certificates was made and

the defendant is not domiciled in

Switzerland.

CHAPTER ELEVEN : BANKRUPTCY AND

AGREED COMPOSITION ARRANGEMENTS

Article 166

I. Recognition 1 . A foreign bankruptcy decision

rendered in the State of domicile of the debtor is recognized in

Switzerland if so requested by the administrators of the bank rupt's estate or by a creditor :

a. if the decision is enforceable in the State in which it was

rendered;

b. if there are no grounds for

refusal under the terms of Ar

ticle 27, and

c. if reciprocity is granted in

the State where the decision

was taken.

2. If the debtor has a branch office in Switzerland, the procedure outlined in Article 50, paragraph 1, of the Statute on Debt Collec tions and Bankruptcy (11) is

admissible up until the time when

the order of priority on the

lines of Article 172 of the pre sent Law becomes definitive.

Article 167

1. A request for recognition of a bankruptcy decision rendered abroad shall be lodged with the

court of the place where the assets are located in Switzer land. Article 29 is applicable by

analogy.

2. If there are assets in several locations, the first judge seized of the action shall have exclu

sive jurisdiction.

3. Claims of the debtor who has gone bankrupt are deemed to be located at the domicile of the bankrupt's

debtor.

Article 168

As soon as a request or recognition of a bankruptcy decision rendered abroad has been lodged, the court

can order safeguarding measures if so requested by the petitioner, as

outlined in Articles 162-165 and 170

of the Statute on Debt Collections

and Bankruptcy (13).

Article 169

3. Publication 1. A decision recognizing a bank

ruptcy declared abroad shall be

published.

2. This decision shall be notified to the bankruptcy and prosecution

office, to the land registrar, to the head of the Commercial Register in the place where the assets are located and, should circumstances so require, to the Federal Office

for Intellectual Property. The

II. Procedure

1. Competence 2. Safeguarding

measures

(11 ) RS 281.1

(13) RS 281.1

h-1 00 LH



same applies to the closing and

suspension of bankruptcy procee

dings and to a revocation of

bankruptcy.

Article 170

III. Legal

Consequences

1. In general 1 . Subject to any contrary provi

sions in the present Law, recog nition of a bankruptcy decision

rendered abroad shall have the same effects on the assets of a

debtor located in Switzerland as under the provisions of Swiss Law

on bankruptcy.

2. The deadlines imposed by Swiss

Law start to run as soon as the decision to recognize is pu

blished.

3. There are no meetings of credi tors, nor a supervisory board.

Article 171

2. Action

to set aside The action to set aside an agreement

made by a debtor in defraud of his creditors is governed by Articles 285-292 of the Statute on Debt Col lections and Bankruptcy (13). It can also be brought by a foreign administrator of the bankrupt's

estate or by one of the creditors

who is entitled accordingly.

Article 172

3. Priority of

creditors 1 . Only the following are admitted

to enter the priority of credi

tors :

a. secured creditors specified in Article 219 of the Statute on Debt Collections and Bank

ruptcy (14) and

b. un-secured creditors in the

first four categories of Ar ticle 219, paragraph 4, of the Statute on Debt Collections

and Bankruptcy who have their domicile

in

Switzerland. 2. Only those creditors specified in the first paragraph can bring an action to challenge the priority of creditors as specified in Article 250 of the Statute on Debt Collections and Bankruptcy. 3. If a creditor

has already obtai ned part

satisfaction

in foreign proceedings relating to the bank ruptcy, the amount he has obtai ned is offset,

after deduction of

expenses,

against

the dividend accruing to him as a consequence

of the

Swiss

proceedings.

Article 173

Distribution

a) Recognition of foreign

order

of priority

1 . After distribution of the divi

dend on the lines of Article 172, paragraph 1 , any outstanding

balance shall be transferred to the foreign bankruptcy fund or to

any

entitled

creditors.

2. This balance can only be alloca ted after the foreign priority of

creditors has been recognized. 3. The Swiss Court having jurisdic tion to recognize the foreign decision on bankruptcy is also competent to

recognize the fo reign

priority

of creditors. It shall also investigate whether

creditors domiciled in Switzer land were

lawfully

admitted to the priority of

creditors abroad.

The creditors involved shall be

heard.

(13) RS 281 .1 (14) RS 281.1

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Article 174

b) Non-recogni

tion of foreign

priority

of

creditors 1. If the foreign priority of credi

tors cannot be recognized, the

balance of funds is shared bet ween creditors in category 5, in accordance with Article 219, paragraph 4 of the Statute on Debt Collections and Bankruptcy

(15), if they are domiciled in

Switzerland.

2. The same applies when the collo

cation is not registered for

recognition

purposes

within the delay specified by the judge.

Article 175

Voluntary arrange ment and similar

proceedings.

Recognition A

voluntary

arrangement or a similar

procedure

approved

of by a foreign jurisdiction shall be recognized in Switzerland. Articles 166 to 170 are

applicable by analogy. Creditors who are domiciled

in

Switzerland shall

be heard.

CHAPTER TWELVE : INTERNATIONAL ARBI

TRATION Article 176

Scope of the

Arbitral Tribunal 1 . The provisions of the present

chapter shall apply to every arbitration when the seat of the arbitral tribunal is located in Switzerland

and

when at least one of the parties, at the time of

the conclusion of the arbitration agreement,

had

neither its domi

cile not its habitual residence

in Switzerland.

2. The provisions of this chapter do

not apply when the parties have excluded in writing its applica tion and have agreed to apply

only the cantonal procedural

rules with respect to arbitra

tion.

3. The parties themselves or the arbitration institution designa

ted by them, or in default the reof, the arbitrators, shall

determine the seat of the arbi

tral

tribunal.

Article 177 II. Arbitrability 1. Any claim related to party's

assets, rights or liabilities may

be submitted to arbitration.

2. A State or an enterprise or orga nization under State control

which is a party to an arbitra tion agreement may not invoke its

own law in order to challenge the

arbitrability of the dispute or its capacity to be a party to the

arbitration.

Article 178

III. Arbitration

agreement 1 . An arbitration agreement is for

mally valid if it is made in wri ting, or by cable, telex, tele

copy, or any other means of com munication providing proof of its

existence in a text.

2. Every arbitration agreement shall

be valid as to its substance,

provided it meets the require ments dictated either by the law chosen by the parties, or by the law governing the subject matter of the dispute and notably the

law applicable to the main contract, or by Swiss Law.

3. The validity of an arbitration agreement cannot be challenged on the basis that the main contract is invalid or that the arbitra

tion agreement relates to a dis pute which has not yet arisen.

(15) RS 281 .1

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Article 179

Arbitral Tribunal

1. Place of business 1 . The arbitrators shall be appoin

ted, dismissed or replaced in accordance with the agreement of

the parties.

2. Failing such an agreement, an ap plication may be made to the

Court of the canton in which the arbitral tribunal has its seat; such Court shall apply, by ana logy, the provisions of cantonal

law as to the appointment, dis missal or replacement of arbitra

tors

.

3. When a Court is called upon to appoint an arbitrator, it shall

do so, unless a summary examina

tion demonstrates that no arbi tration agreement exists between

the parties.

Article 180

Challenge of

arbitrators 1 . An arbitrator may be challenged :

a. when he does not meet the qua lifications agreed upon by the

parties;

b. when the arbitration rules adopted by the parties provide for a ground for challenge; or c. when the circumstances may

legitimately lead to doubt about his independence.

2. A party may only challenge the arbitrator it has appointed on a ground of which it became aware after the appointment. The arbi tral

tribunal

and the other party must be informed immediately of

the ground for challenge.

3. The court of the Canton in which

the arbitral tribunal has its seat shall make a final decision on the challenge, unless other

wise provided by the parties.

Article 181

V. Lis Pendens The arbitration proceedings are dee

med to be pending from the moment on

the parties files a claim before one

or all of the arbitrators designated

in the arbitration agreement or, in

the absence of such designation, when one of the parties initiates the procedure for the appointment of

the arbitral tribunal.

Article

182

1 . The parties may agree upon the

rules of procedure, either directly, or by reference to the rules of an arbitration institu tion; they may also subject the proceedings to a procedural law

of their choice.

2. If the rules of procedure have not been agreed upon by the par

ties, they may be determined by the arbitral tribunal to the extent

necessary,

either directly or by reference to a law or to

arbitration rules.

3.

Irrespective

of the procedure

chosen by the

parties,

the arbi tral tribunal shall in all cases guaranty equal treatment of the

parties and their right to be heard in adversary proceedings.

Article 183

2. Provisional

and conservatory

measures 1 . Unless otherwise agreed the par

ties, the

arbitral

tribunal may issue provisional or conservatory orders if

requested

by one of the

parties.

2. If the opposing party does not

voluntarily comply with the order issued by the

arbitral

tribunal, the latter may seek the assis tance of the court, which shall

apply its own law.

VI. Procedure

1. Principle

ISJ 00 00



3. The arbitral tribunal or the

court may grant provisional or conservatory measures subject to the receipt of adequate security

from the requesting party.

Article 184

3. Taking of

evidence 1. The arbitral tribunal shall

conduct the

taking

of evidence

itself.

2. Where the assistance of a court

is necessary to gather evidence, the arbitral tribunal, or the parties with the agreement of the

arbitrators, may seek the assis tance of the court of the canton

in which the arbitral tribunal has its seat; that court shall

apply its own law.

Article 185

4. Other court

assistance Where the assistance of a court is

otherwise

necessary,

the court of

the canton in which the arbitral tribunal has its seat shall have

jurisdiction.

Article 186

VII. Jurisdiction 1 . The arbitral tribunal shall rule

its own jurisdiction.

2. The claim of

lack

of jurisdiction must be raised prior to any

defense on the merits.

3. As a general rule, the arbitral

tribunal shall rule on its

jurisdiction

by means of an interlocutory decision.

Article 187

VIII. Award on

the merits 1 . The arbitral tribunal shall apply

the rules of law chosen by the

1. Applicable law parties, or, failing such choice,

the rules of law most closely

connected to the dispute.

2. The parties may authorize the ar

bitral tribunal to decide ex aeauo

et bono. Article 188

2. Partial

award Unless the parties have agreed

otherwise, the arbitral tribunal may

issue partial awards.

3. Arbitral

award 1. The award shall be issued accor

ding to the procedure and in the form agreed upon by the parties. 2. Failing such agreement, the award shall be made by a majority of

the arbitrators, or, in the

absence of a majority, by the

chairman alone. It shall be in writing, stating the reasons on

which it is based, dated and signed. The chairman's signature

shall suffice.

Article 190

IX. Finality,

action to set aside

1 . Principle 1 . An award is final as of its com munication.

2. An award may be attacked on the

following grounds only :

a. when the sole arbitrator or the arbitral tribunal was ap pointed in violation of the

applicable rules;

b. when the arbitral tribunal

erroneously held that it had

or did not have jurisdiction; c. when the arbitral tribunal

rules on issues beyond the scope of the claims or failed to rule on one of the claims

submitted;

to 00 KO



h-1 VD O

d. when the arbitral tribunal failed to grant the parties

equal

treatment

or the right

to be heard

in

adversary pro

ceedings ;

e. when the award is contrary to

public policy.

3. An interim award may only be

attacked on the grounds set forth above at 2 a) and b). The time limit to file an action to set aside commences with the communi

cation of the award.

Article 191

2. Jurisdiction 1. An action to set aside may only

be brought before the Federal Tribunal. The proceedings

shall be governed by the provisions

concerning public law appeals of

the Federal statute organizing

federal courts.

2. However, the parties may agree that such recourse be brought

before the

court

of the canton in which the arbitral tribunal had

its seat in lieu of the Federal Tribunal and

the

aforesaid court shall

conclusively

rule on the

matter; the

cantons

shall desi

gnate a sole cantonal court

having jurisdiction for this pur

pose. Article 192

X. Waiver 1 . If neither party is domiciled,

nor has its habitual residence or place of

business

in Switzerland, the parties may expressly agree

in the arbitration agreement or in a subsequent written agree ment, to waive their right to

challenge an arbitral award

before the Swiss courts; they may also waive

their

right only with

respect to one or some of the grounds set

forth

at Article 190

(2).

2. When the parties have waived all recourse against the award and when its enforcement is sought in Switzerland, the New York Conven

tion on the Recognition and En forcement of Foreign Arbitral Awards of June 10, 1958, shall

apply by analogy.

Article 193

XI. Deposit and issuance of certificate of

enforceability 1 . Each party may file, at its own

expense, a copy of the award with the Swiss court at the place

where the arbitral tribunal has

its seat.

2. The Swiss court shall certify, upon the request of one of the parties, that the award is enfor

ceable .

3. Upon the request of one of the

parties, the arbitral tribunal shall certify that the award was made in conformity to the provi sions of the present law; such a

certificate is equivalent to a filing before a Swiss court.

Article 194

XII. Foreign

arbitral awards Recognition and enforcement of

foreign arbitral awards is governed by the New York Convention on the

Recognition and Enforcement of Fo reign Arbitral Awards of June 10,

1958.

