Facts
The appellants – Company [A.] Ltd with registered office in SocRA, Company [B.] Ltd (in liquidation) with registered office in Cyprus and individual [C.] resident in Poland – filed a negative declaratory action against Company [D.] Corp. LLC with registered office in the USA with the Cantonal Court of SocRA on 12 November 2020. They sought a declaration that they owed no claims to the respondent and had no obligations towards it. In support of their claim, they referred to a letter from the respondent dated 22 October 2019 in which it alleged that the appellants had caused damage by breaching a "Cooperation Agreement" dated 18 December 2006 and by "other acts" and were therefore obliged to repay loans.
The action and the request to designate a Swiss domicile for service were served on the respondent by way of judicial assistance. As the respondent did not designate a domicile for service and did not respond, a deadline for filing a statement of defence was set, which was published in the Official Gazette of the Canton of SocRA and in the Swiss Official Gazette of Commerce (SOGC). The Cantonal Court of SocRA declined to enter into the matter with its decision of 27 May 2021 on the grounds that there was no jurisdiction in SocRA. The alleged claims were primarily of a contractual nature, and in the event of any tortious acts, the place of acting or the place where the harmful event occurred was in the USA. The Higher Court of the Canton of SocRA dismissed the appeal with its judgment of 18 February 2022 on the grounds that the appellants had not made any coherent allegations regarding the alleged tortious acts or their place of acting or where the harmful event occurred in SocRA.
The appellants filed an appeal in civil matters with the Federal Supreme Court on 23 March 2022, seeking to have the judgment of the Higher Court set aside and a declaration that they owed no claims to the respondent. The respondent was requested to designate a domicile for service in Switzerland, which it failed to do. The Federal Supreme Court examined the appeal without obtaining any observations.
Considerations
The Federal Supreme Court examines ex officio compliance with the law pursuant to Art. 106 para. 1 FSCA, but is limited to the legal violations alleged, unless they are obvious. The appeal must be sufficiently reasoned and address the reasoning of the contested decision. The appellants supplemented the facts in their appeal without meeting the strict requirements for a factual complaint pursuant to Art. 105 para. 2 FSCA. New facts or evidence may only be adduced if they only became legally relevant as a result of the lower court’s decision. Reference to an email dated 16 March 2022 as new evidence was deemed an inadmissible novum since it did not present new circumstances decisive for the outcome of the proceedings.
For actions arising from tortious acts, jurisdiction of the Swiss courts is established pursuant to Art. 129 PILA at the domicile or habitual residence of the defendant, at the place of acting or where the harmful event occurred, or at the place of a branch in Switzerland. The lower court was correct in finding that the appellants had not made sufficient allegations regarding the alleged tortious acts or their place of acting or where the harmful event occurred in SocRA. The mere possibility that acts may have been committed in SocRA is not sufficient to establish jurisdiction. Moreover, the appellants should have provided precise details of the acts alleged against them and where they are said to have taken place.
The Federal Supreme Court emphasised that pursuant to Art. 57 CPC, the parties are required to plead and prove the facts that establish the admissibility of their action. The lower court was not obliged to investigate facts on its own motion that could establish jurisdiction. An obligation…