Facts
The company D., domiciled in London, became illiquid in the fall of 1990 and was subsequently placed under "administration", a form of insolvency administration. The "administrator" of D. concluded that the companies A., B. and C., domiciled in Zurich, Geneva and New York, had been involved in the offenses of the majority shareholder and chairman of the management, X. On November 9, 1992, D. sent them a draft statement of claim and gave them a deadline of 14 days to respond to the allegations and submit any settlement proposals.
On February 8, 1993, A., B. and C. informed D. that a settlement was not an option for them. At 4:00 pm on the same day, they submitted a conciliation request to the Justice of the Peace in Zurich 1, with the legal claims that it should be determined that they owed nothing to D. from the alleged actions. On February 9, 1993, the applicants were issued an order without conducting the conciliation procedure, based on § 99 para. 3 of the Zurich Code of Civil Procedure.
On the evening of February 9, 1993, D. served the "writ of summons" on the law firm designated by A., B. and C. in London as the recipient of service, and sent them the complete statement of claim the next day. On October 14, 1993, a court hearing took place in London before the High Court of Justice. Judge Vinelot noted that D. had brought its claim in London by serving the "writ" on the representatives of the opposing party on February 9, 1993, within the meaning of Art. 21 of the Lugano Convention. He stayed the proceedings until the Swiss courts had decided on their jurisdiction.
On April 13, 1993, A., B. and C. filed the order and statement of claim with the District Court of Zurich. The District Court limited the proceedings to the defendants' requests to stay the proceedings and to decide on the jurisdiction of the District Court and the further procedural requirements only after the British court dealing with their claim for performance had decided on its jurisdiction.
Considerations
The Federal Court dismisses both appeals, to the extent that it enters into them, and confirms the decision of the Cantonal Court.
The appeal is admissible, as the cantonal instances have rendered a separate preliminary decision on jurisdiction under Art. 21 of the Lugano Convention. The Federal Court notes that the District Court of Zurich, which was subsequently seized, is obliged under Art. 21 para. 1 of the Lugano Convention to stay the proceedings until the jurisdiction of the British court first seized is established.
The Federal Court explains that for the determination of the time of the commencement of the proceedings under Art. 21 of the Lugano Convention, not…