Dismissal of the negative declaratory action by the court seized first

Facts

X. AG, a Swiss German company, was sued by Z. SA before the court of Geneva. A few days earlier, X. AG had filed a conciliation request before the justice of the peace of Arbon, aiming to establish that Y. had no right of appeal against it in the event that it lost the lawsuit filed in Geneva by Z. SA. The court of Geneva suspended the proceedings until the court of Arbon ruled on its jurisdiction. The cantonal court then annulled this suspension measure.

Considerations

The Federal Tribunal upheld the appeal for reform filed by X. AG. It considered that the negative declaratory action brought in Arbon and the third-party notice filed in Geneva were identical within the meaning of Art. 35 of the Federal Act on Jurisdiction in Civil Matters (LFors). Indeed, although the negative declaratory action and the action for a declaratory judgment have different conclusions, they relate to the same subject matter and the same set of facts. The Federal Tribunal considered that the previous case law, which denied the identity between these two types of actions, could not be…