Facts
On 4 May 1987, a private law foundation was validly constituted according to the art. 552 ss of the Liechtenstein law of 20 January 1926 on persons and companies. The foundation has its seat in Vaduz, the capital of Liechtenstein, and opened an account with a bank based in Geneva. The bank contested the foundation's capacity to take legal action, arguing that the establishment of family fideicommissa is prohibited in Switzerland under art. 335 al. 2 CC.
The Court of Justice ruled in favor of the foundation, considering that the applicable law to the foundation is the law of Liechtenstein, which grants foundations legal personality. The bank filed a civil law appeal with the Federal Tribunal, which was dismissed.
Considerations
The Federal Tribunal examined the question of whether the prohibition on the establishment of family fideicommissa under art. 335 al. 2 CC is a law of immediate application within the meaning of art. 18 PILA. The court considered that this prohibition is not a law of immediate application, as it does not respond to essential social, political or economic interests.
The court also examined the doctrine and case law on the issue, and found that the majority of authors and jurists consider that the prohibition on the establishment of family fideicommissa is not a law of immediate application. The court also considered that the existence of any particular connection with Switzerland does not justify the non-recognition in Switzerland of family foundations…