Phenomenon of torpedo lawsuits
Pendency (lis pendens) plays an important role in international civil procedure law. In principle, the court first seized in the matter has jurisdiction.The exact moment at which a lawsuit becomes pending may determine both the competent court and the substantive law that will apply. The relevant national law is decisive in determining the point in time for pendency.
This priority principle has led to the emergence of so-called torpedo lawsuits, where a party files early with a foreign court it considers favourable in order to block or delay proceedings in another country. Such tactical lawsuits are used by both potential plaintiffs and defendants to secure procedural advantages.
Start of pendency in Switzerland
In Switzerland, legal action generally requires mandatory conciliation proceedings and the issuance of an authorisation to proceed (Klagebewilligung) before first instance litigation proceedings can be commenced. In certain cases, particularly if the dispute falls in the jurisdiction of a Commercial Court, the defendant is resident abroad or their whereabouts are unknown, these requirements may be unilaterally waived, although voluntary conciliation proceedings are still possible.
Regarding pendency, the differences between mandatory and optional conciliation proceedings had been unclear until now. It was undisputed that in mandatory conciliation proceedings, pendency arises already upon filing of the conciliation request. However, it was controversial whether this also applied to optional conciliation proceedings. The Swiss Federal Supreme Court has now clarified that even if conciliation is not mandatory, the mere request to initiate such proceedings establishes lis pendens. The decisive factor is, therefore, the date on which the request for conciliation is submitted, regardless of whether conciliation would have been necessary for the specific dispute.
Consequences of lack of form
In the present decision of the Swiss Federal Supreme Court, one of the defendants had not been duly summoned to the conciliation hearing by the conciliation authority. Such a formal error would, in principle, render the authorisation to sue invalid in mandatory conciliation proceedings. In this specific case, however, conciliation was optional because all the defendants resided abroad. The only decisive factor was, therefore, that the request for conciliation had been submitted in the proper form and that the action had been brought within the three-month period after receipt of the authorisation to proceed.
The Swiss Federal Supreme Court held that an authorisation to proceed is not a mandatory procedural requirement in optional conciliation proceedings. Formal errors made by the conciliation authority therefore cannot suspend the pendency or call into question the validity of the authorisation. The matter therefore remained pending since the conciliation request was filed, regardless of the incorrect summons issued by the authority.
Relevance of the decision
The decision strengthens legal certainty in international civil procedure law and underscores the predictability and pragmatism of Switzerland as a forum of jurisdiction. At the same time, it shows that initiating optional conciliation proceedings can be effective means of securing priority of pendency in international disputes, in particular to pre-empt a threatened torpedo lawsuit and to secure a convenient forum.
