Facts
The defendant, a lawyer and honorary consul of country [A.] , offered his services to the plaintiff, Swisscom AG, in the spring of 1995 to improve the chances of [Z.] N.V. in the tender for a minority stake in the telecom company of country [A.] . The plaintiff agreed that the defendant would accompany the application of [Z.] N.V. The defendant claimed that a brokerage contract had been concluded between the parties and demanded a brokerage fee of CHF 22.5 million plus 7.6% VAT. The plaintiff contested the claim and requested that it be established that it did not owe the defendant anything. The Commercial Court of the Canton of Zurich dismissed the claim and the defendant's counterclaim for payment of the brokerage fee.
The defendant appealed and requested that the plaintiff be ordered to pay him CHF 22.5 million plus 7.6% VAT and interest at 5% since December 22, 1995. The plaintiff filed a cross-appeal and requested that the defendant be ordered to pay her CHF 114,080.40 plus interest.
Considerations
The Federal Court examined the appeal and the cross-appeal and came to the conclusion that the lower court had correctly established the facts and correctly assessed the legal issues. The defendant had not proven that a brokerage contract had been concluded, and the plaintiff had not had to recognize that the defendant was acting as a broker.
The Federal Court stated that a brokerage contract can be concluded by implicit behavior, but requires that the broker's behavior be sufficiently clear so that the client's silence can be interpreted as consent. The defendant had not explicitly clarified that he would claim a fee dependent on the conclusion of the contract to be brokered.
The Federal Court also dismissed the…