Facts
X. AG, headquartered in Arbon, manufactures textile machinery. Y. SA in Panama has been involved in the sale of X. AG's machines in Syria and has received two commission payments for this. Y. SA demanded a further commission payment of 1 million DM, claiming to have been commissioned by A., a member of the board of directors of X. AG. X. AG was not willing to pay an additional commission.
On June 2, 1998, Y. SA filed a claim against A. with the Tribunal de Première Instance in Geneva for the payment of a commission of 1 million DM. A. supported the claim, notified X. AG of the dispute, and asserted recourse claims against it.
On December 21, 2000, X. AG filed a negative declaratory action against Y. SA with the Arbon Conciliation Office, demanding that Y. SA have no claims against it. Also on December 21, 2000, X. AG filed a claim against A. with the Arbon Conciliation Office, demanding, among other things, that A. be obligated to indemnify it against all claims by Y. SA.
On January 3, 2001, A., as announced, filed a second warranty claim against X. AG with the Tribunal de Première Instance in Geneva, in the event that he was obligated to pay a commission to Y. SA in the Geneva proceedings.
Considerations
The Federal Supreme Court decided that the negative declaratory action filed by X. AG against A. in Arbon on December 21, 2000 must be dismissed for lack of a sufficient declaratory interest.
The mere interest of a party in being able to choose the court venue that suits it best by initiating a claim more quickly cannot in itself establish a protectable declaratory interest. If a performance claim can be expected in the…