Change of practice re legitimate interest in a negative declaratory judgment

This Supreme Court judgment relates to an antitrust matter, but will have implications for ‘forum running’ in general.

The Supreme Court has published a decision earlier this week in an antitrust matter that changes the Swiss practice with respect to the required legitimate interest in a negative declaratory judgment; 4A_417/2017.

Swatch brands

When the Swatch Group introduced a selective distribution system for its spare parts, it stopped cooperation with a British wholesaler at 31 December 2015, after a transition period of more than 12 months. The wholesaler threatened Swatch Group with letter of 16 March 2016 with a suit before the High Court of Justice in London, without further notice, if it would not again be supplied with spare parts by 6 April 2016; a draft complaint had already been attached.

The time limit was later extended to 20 April 2016. In a smart move on 19 April 2016, Swatch Group requested a negative declaratory judgment at the Commercial Court of Berne. The British wholesaler filed his suit at the High Court of Justice in London on 29 April 2016.

Notably, the earlier decision BGE 136 III 523 of the Supreme Court held that the mere interest to fix a place of jurisdiction (‘forum running’) is not sufficient legitimate interest for requesting a negative declaratory judgment. Consequently, the Commercial of Berne denied the legitimate interest and did not consider the case with decision of 26 June 2017. Swatch Group appealed to the Supreme Court, aiming to change this practice. And it did so; see the Supreme Court’s press release.

At least in an international context, ‘forum running’ now is to be considered as sufficient legitimate interest for a declaratory judgment. The case has been remitted to the Commercial Court of Berne for further assessment.

Now, let’s wait for the first creative ones to use this in a patent case!

Reported by Martin WILMING

4A_417/2017 (new practice)

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PRESS RELEASE

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BGE 136 III 523 (now moot)

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