A Swiss seller and a Polish buyer entered into a contract for the sale of building materials. The seller filed an action against the buyer asking for the payment of price plus interests, alleging that the buyer had not paid the delivered materials. The Court of First Instance, though denying the existence of a forum selection clause according to Art. 17 of the 1988 Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, affirmed its jurisdiction, being the court of the place of performance. The buyer appealed.
The Supreme Court confirmed the lower court decision, arguing that according to domestic procedural conflict rules, a claim may be filed before a Swiss court when the disputed obligation (in this case, the payment of price) is to be performed in Switzerland, independently from the defendant’s place of business or residence.
In order to determine the place of payment of the price, the Court applied CISG, which governed the contract according to its Art. 1(1)(a). In the absence of a contrary agreement between the parties, payment of the price was to be made at the seller's place of business (Art. 57(1)(a) CISG), and not at the place of delivery of the goods (Art. 57(1)(b) CISG). The latter rule applies only when payment is to be made against the handing over of the goods or documents. The Court thus confirmed its jurisdiction.
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