Facts
The city of U. (claimant, counterdefendant, appellant) concluded a contract with company A. AG (defendant, counterclaimant, respondent) for the complete renovation of its website. After disagreements, it set several additional deadlines for the defendant to perform without defects, the last one expiring on 1 July 2014. By email of 20 August 2014, the defendant asked the claimant if it should reserve personnel resources for September and October to complete the work. The claimant postponed the decision on the further procedure to the week of 22 September 2014. By letter of 22 September 2014, it declared that it was immediately withdrawing from the contract, citing deception, delay, and cost overruns.
By an action before the Commercial Court of the Canton of Zurich, the claimant demanded reimbursement of the payments it had made to the defendant and also asserted claims for damages. The defendant filed a counterclaim demanding that the claimant be condemned to pay the balance of the contractually owed lump-sum payments as well as damages.
Considerations
The Federal Court had to decide whether the Commercial Court was competent for a connected counterclaim when the claimant was not registered in the commercial register but had exercised its option right according to Art. 6 para. 3 CPC. The previous instance had answered in the affirmative and condemned the claimant to pay the balance of the lump-sum payments.
The Federal Court confirmed this decision and explained that the competence of the Commercial Court for the counterclaim does not depend on the claimant's registration in the commercial register if the latter has exercised its option right according to Art. 6 para. 3 CPC. This also applies if the counterclaim does not fall within the material competence of the Commercial Court.
The court further stated that the connection between the main claim and the counterclaim justifies the Commercial Court…