von hauser@m-win.ch, +41 (52) 269 21 11
What is a jurisdiction clause, what is a choice of law, why do you need it and why is "national law" not always "national law"? We will give you a brief overview.
The questions mentioned above are particularly relevant when there is an international connection. Example: One party is based in Switzerland, the other in Germany. The question of jurisdiction (which court has jurisdiction) also arises when one party is based in Zurich and the other in Basel. However, domestic issues are not addressed here.
Back to our international parties: If these parties conclude a contract, the first question that arises in the event of a dispute is which law is to be applied: German law or Swiss law? The applicable law is regulated by international private law (also known as conflict of laws). In Switzerland, there is the IPRG ( German Private International Law Act). In the relationship between Germany and Switzerland, however, the Lugano Convention is particularly relevant, which takes precedence over the IPRG.
In order to agree on the law of the country that the parties want, they can agree on which law is to be applied. However, it should be noted that if, for example, German law is chosen, it may not be (only) the "normal" German laws that apply, but international treaties may also apply as part of national law. One example is the Vienna Sales Convention (CISG). When formulating the choice of law, a few points must therefore be taken into account.
If it is now established that German law applies, the next step is to ask where one can assert one's claims. This question is the question of jurisdiction. Here, too, the answer can be found in international private law, and here, too, the parties have the option of agreeing on a desired jurisdiction.
In conclusion, it is important to consider which law and jurisdiction you want in international matters. Clauses should be included in the contracts accordingly, and care should be taken when drafting them to avoid any surprises.
If you have any questions or need support, please feel free to contact us.
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