Binding Effect of a Jurisdiction Agreement on a Beneficiary Third Party in a Genuine Contract for the Benefit of Third Parties

Facts

The A. AG (plaintiff, appellant) with its registered office in Switzerland sued the D. GmbH (defendant 1), the B. EU Holding B.V. (defendant 2, respondent 1) and the B. Inc. (defendant 3, respondent 2) for damages. The claim was based on guarantee declarations (Parental Guarantees) of defendants 2 and 3 in favor of the plaintiff.

The Commercial Court of the Canton of Bern did not enter into the claim against defendant 3 regarding the Parental Guarantee of November 19, 2015, as the jurisdiction agreement contained therein in favor of the courts in Germany could be opposed to the plaintiff as a beneficiary third party. For the claims from the Parental Guarantee of defendant 2 of September 20, 2016, the court declared the guarantee to be formally invalid.

Considerations

The Federal Supreme Court decided that the question of whether and to what extent a third party is bound by a jurisdiction agreement in a genuine contract for the benefit of third parties is not assessed autonomously according to Art. 23 of the Lugano Convention, but according to the applicable national law.

According to the prevailing doctrine, the parties to a genuine contract for the benefit of third parties can grant the third party the claim in such a way that he can only sue the claim created in his favor…