Facts
This judgment concerns a case in which the Federal Court issued a referral decision. The parties involved are Z. and Mitb. (the plaintiffs) and V. Versicherungen AG and X. (the defendants). The proceedings were initiated before the Federal Court, which issued a referral decision on 11 March 2009 (4A_527/2008). The referral decision was made under the Federal Supreme Court Act (FSCA). The plaintiffs challenged the referral decision before the Federal Court.
The facts of the case are as follows: the Federal Court issued a referral decision that bound the Federal Court and the cantonal courts. The plaintiffs initiated new proceedings before the cantonal court, which joined this proceeding with another proceeding that was not concerned by the referral decision. The plaintiffs did not raise any objections to this joining in the cantonal proceedings.
Considerations
The Federal Court examined the scope of the referral decision and its effect on cantonal proceedings. It found that the referral decision bound the Federal Court and the cantonal courts, and that the parties could not raise new objections that had not been taken into account in the referral decision.
The Federal Court also examined the issue of joining proceedings and found that joining the proceeding after the issuance of the referral decision with a case that was not concerned by this decision was not admissible as such. However, since the plaintiffs had not raised any objections to this joining in the cantonal proceedings, it was accepted that they had allowed the referral decision to be invoked against them.
The Federal Court concluded that the referral decision bound the parties and the courts, and that the parties could not raise new…