Dismissal of the appeal against the recognition of a contract referring to German law and the dismissal of the counterclaim

Facts

- B. AG and F. GmbH (plaintiffs) concluded on 16 March 1987 with A. AG (defendant) a civil society contract for the construction of an underground parking lot in Constance. A. AG provided Z. AG (defendant) with a performance guarantee of 2 million DM. - On 25 September 1987, Z. AG issued a joint and several surety declaration in favor of the consortium, subject to German law. - After disputes between the parties, the plaintiffs sued Z. AG before the Commercial Court of Zurich to obtain payment of the guarantee. Z. AG filed a counterclaim to obtain payment of a claim of A. AG. - The Commercial Court upheld the main claim and dismissed the counterclaim. Z. AG appealed against this judgment.

Considerations

- According to previous case law and current Swiss private international law, the parties are free to choose the applicable law for their contractual relations. The question of whether a referral contract has been concluded must be examined according to Swiss law, the law of the forum. - The Commercial Court considered that the surety declaration of 25 September 1987 by Z. AG contained a normative reference to German law, which binds Z. AG by virtue of the…