Facts
B. S.A. with its registered office in Porrentruy (Jura) operates various gas station facilities. A. AG with its registered office in Boswil (Aargau) is specialized in the development, manufacture, construction, installation and maintenance of electrical systems, gas stations and other industrial facilities, including planning and consulting.
In 2009, B. S.A. planned to build another gas station in Les Reussilles in the municipality of Tramelan (Bern) and commissioned A. AG for this purpose. No written contract was signed, but it was orally agreed that A. AG would take over planning and construction management tasks, including construction supervision.
In the night from May 5 to 6, 2012, a fire broke out at the gas station. The damage to B. S.A. was not covered by the building insurance. On April 24, 2017, B. S.A. filed a lawsuit with the Commercial Court of the Canton of Bern against A. AG for damages in the amount of 1,012,500 Swiss francs, as A. AG had failed to take out insurance for the ongoing construction work and to notify the start of the work to the building insurance.
Considerations
The Federal Supreme Court confirmed the jurisdiction of the Commercial Court of the Canton of Bern in accordance with Article 31 of the Swiss Civil Procedure Code (CPC) and Article 113 of the Federal Act on Private International Law (PILA).
According to the case law, a contract may contain several characteristic performances within the meaning of Article 31 CPC and Article 113 PILA, each of which can establish jurisdiction at the place of performance. In the present case, the architect's or planner's…