Facts
Mihajlo [M.] is asserting claims against P. Bank, which has its registered office in Zagreb, Croatia, in the amounts of CHF 156,922.25 and CHF 160,000.-- plus interest. On September 17, 1991, he had assets of P. Bank at a Swiss bank in Zurich attached. [M.] pursued the attachment with two debt collection requests dated September 19, 1991, two payment orders dated September 30, 1991, and - in response to P. Bank's legal objections - with a lawsuit filed on November 7, 1991 with the Commercial Court of the Canton of Zurich as the place of attachment. The defendant raised the plea of lack of local jurisdiction, arguing that jurisdiction of the courts in Croatia had been agreed upon between the parties to the proceedings.
In a separate interlocutory decision dated October 9, 1992, the Commercial Court dismissed the defendant's plea of lack of jurisdiction. The court assumed that the disputed legal relationship was not covered by the jurisdiction clauses invoked by the defendant.
The defendant has appealed the decision of the Commercial Court, which was dismissed by the Federal Supreme Court.
Considerations
Pursuant to Art. 4 of the Swiss Federal Act on Private International Law (PILA), the claim for the continuation of the attachment may be filed at the Swiss place of attachment, unless the PILA provides for a different place of jurisdiction in Switzerland. However, the place of jurisdiction at the place of attachment is not mandatory. Therefore, the parties remain free to agree on a jurisdiction clause within the meaning of Art. 5 para. 1 PILA. Unless otherwise provided in this agreement, the agreed court shall have exclusive jurisdiction.
The presumption of Art. 5 para. 1 PILA, however, only applies if it is undisputed or can be easily determined that the subject matter of the dispute is a legal relationship for which a jurisdiction agreement has been concluded. If, on the other hand, this question is disputed in the proceedings, the general procedural principle applies,…