ERDEM-NEWSLETTER-2018-metin

280 NEWSLETTER 2018 Forum Shopping Decision of the Federal Supreme Court of Switzerland * Att. Fatih Isik Introduction In its judgment dated 14March 2018 and numbered 4A_417/2017, the Federal Supreme Court of Switzerland (“Federal Court”) ruled that the Swatch Group AG (“Swatch”) had a legal interest in filing a negative declaratory action against the British Cousins Material House UK (“Cousins”) in Switzerland. With this decision, the Federal Court changed its approach to the forum shopping rule in international disputes since, prior to this decision, the Federal Court did not accept lawsuits filed before Swiss courts that had the sole purpose of benefit- ing from the forum choice. Subject of the Case and Decision Swatch ended its partnership with British wholesaler Cousins on 31 December 2015 upon creating a selective distribution system for spare parts. Cousins notified Swatch that if no spare parts were sup- plied, it would file a lawsuit before the English courts on 16 March 2016, but later changed the date to 20 April 2016. However, Swatch filed a negative declaratory action against Cousins on 19 April 2016 before the Commercial Court of Bern. Cousins applied to the British courts on 29 April 2016. Based on the Federal Court’s precedents that did not accept the plaintiff’s filing a lawsuit before the court that would be to its benefit ( Forum Shopping ) 1 , the Commercial Court of Bern ruled on 26 July 2017 that there is no legitimate benefit, and refused the request for a negative declaratory action. Swatch then appealed the decision and * Article of June 2018 1 BGE 136 III 523.