Action for Denial of Jurisdiction: Lack of Substantive Jurisdiction of the Commercial Court

Facts

A. AG (Plaintiff, Counterdefendant, Appellant) filed an action for denial of jurisdiction with the Commercial Court of the Canton of St. Gallen against B. GbR (Defendant, Counterclaimant, Respondent). The Defendant is not registered in the commercial register in Germany or Switzerland, while the Plaintiff is registered in the commercial register.

The Commercial Court did not enter into the action due to lack of substantive jurisdiction under Art. 6 CPC. Partially upholding the counterclaim, it ordered the Plaintiff to pay certain amounts to the Defendant.

Considerations

The Federal Supreme Court confirmed the decision of the Commercial Court. Pursuant to Art. 6 para. 2 lit. c CPC, a commercial dispute is only assigned to the Commercial Court if both parties are registered in the commercial register. Since only the Plaintiff, but not the Defendant, is registered in the commercial register, this requirement is not met.

The plaintiff's right of choice under Art. 6 para. 3 CPC, which the Appellant invoked, does not apply in this constellation. The decisive factor is not which party is the creditor or debtor, but who formally appears as the plaintiff and who as the defendant. In the case of a role reversal of the parties, such as in an action for denial of jurisdiction, the Plaintiff…