Facts
The American company Amfit Inc. concluded a contract with the company Orthofit AG (defendant) on February 23, 1990, granting the latter an exclusive license to use an Amfit patent in exchange for royalty payments. On December 31, 1992, the parties agreed that the remaining balance of the royalties, amounting to $163,689, was to be paid by October 31, 1993. As the defendant refused to pay this amount, the company Häner and Partner Engineering (plaintiff) filed a payment action after the claim had been assigned to it by Amfit. The cantonal courts granted the claim. The defendant then filed an appeal for reform with the Federal Tribunal.Considerations
The Federal Tribunal upheld the defendant's appeal and remanded the case to the previous instance for a new decision. It considered that the cantonal courts had not correctly applied Californian law, which was applicable by virtue of the parties' choice of law. Indeed, the lower courts had mainly relied on Swiss doctrine, without taking into account the specificities of Californian law, as required by Art. 16(1) PILA. This constitutes a violation of Art. 43a(1)(a) FJA, which allows for criticism of the fact that the determining foreign law has not been applied in accordance with Swiss conflict of laws rules.
The Federal Tribunal specified that when a Swiss court must apply foreign law, it must place…