Agreements on the material jurisdiction of the Commercial Court are inadmissible within the scope of the plaintiff's right of choice under Art. 6 para. 3 CPC

Facts

The case concerns a dispute between A. AG and the condominium association U. The general contractor agreement between the legal predecessor of A. AG and R. AG contained a jurisdiction clause, according to which the Commercial Court of the Canton of Zurich was to have jurisdiction for disputes arising from the contract. A. AG relied on this clause to establish the jurisdiction of the Commercial Court.

The lower court had decided that the agreement on the material jurisdiction of the Commercial Court was inadmissible. For according to Art. 6 para. 2 CPC, the Commercial Court is only competent for commercial disputes between parties registered in the Commercial Register. Since the condominium owners - with one exception - are not registered in the Commercial Register, this jurisdiction rule does not apply.

Furthermore, A. AG cannot rely on the plaintiff's right of choice under Art. 6 para. 3 CPC. This provision does grant a choice between the Commercial Court and the ordinary court to plaintiffs not registered in the Commercial Register. However, this right of choice belongs only to the plaintiff, not to the defendant party registered in the Commercial Register. A prior agreement on the material jurisdiction of the Commercial Court would therefore be inadmissible, as it would undermine the purpose of the plaintiff's right of choice.

Considerations

The Federal Supreme Court confirms the explanations of the lower court. It states that a prior agreement on the material jurisdiction of the Commercial Court is not permissible within the scope of Art. 6 para. 3 CPC. Otherwise, one would deprive the plaintiff not registered in the Commercial Register of the very advantage that the legislator intended to grant it with the plaintiff's right of choice.

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