Decision on the Provision of Security by a Swiss Domiciled Abroad

Facts

The Federal Tribunal has been seized of a civil appeal against a divorce judgment rendered by the High Court of the Canton of Aargau. The wife has requested that her husband, domiciled in Waldshut (Germany), be required to deposit a security of 5,000 Swiss francs with the registry of the Federal Tribunal as a guarantee for any party indemnity that may be awarded to her. The husband has concluded for the dismissal of this request.

Considerations

The Federal Tribunal considers that Art. 150(2) of the Federal Judicial Organisation Act (OJ) applies to the husband, who is of Swiss nationality but domiciled abroad. Although Art. 17 of the International Convention on Civil Procedure (CIProC) exempts nationals of the Contracting States from the obligation to provide security, this provision does not apply to Swiss nationals acting before the courts of their own country. However, Art. 150(2) OJ leaves the judge with a certain discretion, unlike the former Art. 213 OJ. From the perspective of equal treatment, it is justified to exempt a Swiss domiciled in a CIProC Contracting State from the obligation…