The aim of the Convention is to increase legal certainty and efficiency in relation to exclusive choice of court agreements. To do so, the Convention establishes an international regime that ensures the effectiveness of exclusive choice of court agreements between parties to commercial transactions and governs the recognition and enforcement of judgments resulting from proceedings based on such agreements within all contracting States:

• The scope of application of the Convention is set out in its Chapter 1 (and more specifically Articles 1 and 2). The Convention applies to exclusive choice of court agreements concluded in international civil or commercial matters. Certain matters such as employment, family law, insolvency, antitrust matters etc. are specifically excluded from its scope of application, with contracting States having the possibility to specifically exclude other matters (Article 21). Switzerland has made no such declaration restricting the scope of application of the Convention.
• Transitional provisions are found at Article 16 of the Convention which states that the Convention only applies to choice of court agreements concluded after its entry into force for the State of the chosen court and not to proceedings instituted before its entry into force for the State of the court seized. Thus, choice of court agreements designating Swiss courts only fall under the scope of the Convention if they are concluded after January 1, 2025. Likewise, a Swiss court will only apply the Convention to the recognition and enforcement of decisions based on a choice of court agreement designating a contracting State if it is seized after January 1, 2025.
• Provisions governing the international jurisdiction of courts are set out at Chapter II of the Convention. Article 5 of the Convention provides that the courts of a State designated in an exclusive choice of court agreement have jurisdiction to adjudicate the dispute. Likewise, as per Article 6, any other court seized of the matter must suspend or dismiss the proceedings.
• Provisions on the recognition and enforcement of judgments are found at Chapter III of the Convention, which provides that all contracting States must recognize and declare enforceable a decision rendered by the courts designated in an exclusive choice of court agreement (Article 8), subject only to a limited number of grounds for refusal provided in the Convention itself (Article 9). These include, inter alia, the nullity of the choice of court agreement under the law of the State of the chosen court, the incapacity of the parties to enter into such an agreement under the law of the requested State, improper notification of the proceedings, fraud, incompatibility with the public policy of the requested State or inconsistency of the judgment with a prior judgment in the requested State or another State.Article 22(1) of the Convention permits a State to declare that it will also recognize and enforce judgments rendered by foreign courts based on non-exclusive choice of court agreements. Switzerland has made a corresponding declaration, thus accepting to also recognize and enforce judgments rendered by courts designated in non-exclusive choice of court agreements. However, as per Article 22(2) of the Convention, such judgments may only be recognized under the Convention if both the State of the court of origin as well as the requested State have made a corresponding declaration. Since Switzerland is till date the only State to have made such a declaration, the application of the Convention to the recognition and enforcement of judgments rendered on the basis of non-exclusive choice of court agreements is not effective (yet). Switzerland’s declaration nonetheless testifies to its commitment to ensure the broadest possible application of the Convention, thus easing the enforcement of foreign judgments in Switzerland.

Till date, 35 other States have adhered to the Hague Convention, including the European Union and the United Kingdom of Great Britain and Northern Ireland (UK).

Switzerland’s adherence to this Convention is a welcome remedy to the gap left by Brexit in the enforcement and recognition of UK court judgments in Switzerland. Indeed, since the EU’s refusal to endorse the UK’s adherence to the Lugano Convention in May 2021, there was no international treaty in place between Switzerland and the UK on the recognition and enforcement of court judgments rendered in the two States.

The adoption of the Convention by Switzerland did not require any drastic overhaul of its laws since international choice of court agreements have always been recognized under the Swiss Private International Law Act (PILA). It is to be noted that the requirements for a valid choice of court agreement as per the PILA and the Convention do not differ. However, the Convention will affect the scope of application of Article 5(3) of the PILA that enables the chosen court to decline its jurisdiction in certain cases; the scope of application of such provision will now be even more limited as the Convention overrides Article 5(3) of the PILA.

Moreover, since the Convention (Article 26) provides that international conventions concluded by the contracting States take precedence over the Convention, irrespective of whether such other conventions were concluded before or after the entry into force of the (Hague) Convention, the Lugano Convention, that currently applies between Switzerland and member States of the EU and the European Free Trade Association, will continue to apply.

Overall, Switzerland’s adhesion to the Convention is a positive step that improves the legal certainty and predictability of jurisdictional and enforcement issues in international disputes based on choice of court agreements. With this adhesion, Switzerland has further reinforced its commitment to effective and speedy dispute resolution, thus reiterating its position as an international business hub.