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In a recent landmark decision (5A_114/2025 of 13 January 2026), the Swiss Federal Supreme Court has resolved two long‑disputed questions of international lis pendens under Article 9(2) of the Swiss Private International Law Act ("PILA"):
- Filing of a conciliation request is sufficient to create lis pendens in Switzerland, even where conciliation is not mandatory
- An alleged defect in the subsequent authorisation to proceed does not retroactively eliminate lis pendens when conciliation was optional.
This ruling provides clear guidance on forum priority and reduces risks of undue formalism in cross‑border disputes. It enhances legal certainty and limits forum shopping as a delaying tactic.
FACTUAL BACKGROUND
The case arose from a cross-border succession and matrimonial regime dispute following the death of a French national apparently domiciled in Switzerland, with other parties domiciled in the United States, the United Kingdom and France.
The surviving spouse filed a voluntary conciliation request in the Canton of Valais on 3 June 2020 against the deceased's children. Such request was voluntary as the children were not domiciled in Switzerland (cf. Article 199(2)(a) of the Swiss Civil Procedure Code, "CPC"). Therefore, the spouse could have skipped the conciliatory phase and directly filed a claim on the merits.
A defendant living in the United States objected on the grounds that he had not been validly served the invitation to the conciliation hearing, which led him to challenge the legitimacy of the authorisation granted to the spouse and in turn the admissibility of the claim on the merits.
Meanwhile, another defendant had started proceedings in Paris, just after the conciliation hearing but before the surviving spouse introduced her claim on the merits and while the deadline to do so was still running. Consequently, the first instance court suspended the Swiss case on lis pendens grounds pending the French proceedings. This order was upheld by the cantonal appeals court, prompting the appeal to the Federal Supreme Court.
THE FEDERAL SUPREME COURT'S RULING
OPTIONAL CONCILIATION REQUEST FILING ALSO TRIGGERS INTERNATIONAL LIS PENDENS
The Supreme Court held that, for the purposes of Article 9(2) PILA, the first act "necessary" to introduce proceedings in Switzerland – and thus triggering lis pendens – is met by filing a conciliation request, irrespective of whether conciliation is mandatory or optional.
The Court noted that previous case law had not expressly excluded this solution. It pointed out that the legislative objective is to allow the initiation of proceedings in Switzerland as soon as possible, including through conciliation when the defendant is abroad, and that there is no reason to interpret "necessary" as "mandatory". In addition, the solution adopted by the Court harmonises the rule for international lis pendens under Article 9 PILA with the domestic solution under Article 62 CPC, which establishes lis pendens upon the filing of a request for conciliation, whether mandatory or optional.
DEFECT IN AUTHORISATION TO PROCEED HAS NO BEARING ON LIS PENDENS IN CASES OF OPTIONAL CONCILIATION
The Court then distinguished the effects of defects in the conciliation stage depending on whether conciliation is mandatory or facultative (optional).
Where conciliation is mandatory, a valid authorisation to proceed is a condition of admissibility for the claim on the merits; a defect can lead to dismissal, and courts must examine this ex officio.
However, where conciliation is facultative, for example when the defendant is domiciled abroad (Article 199(2) CPC), the authorisation to proceed is not a condition of admissibility, the defendant has no right to a conciliation hearing, and it would be overly formalistic to let an authority's mistake at a non-mandatory step extinguish lis pendens.
For facultative conciliation, maintaining lis pendens depends solely on three criteria:
- no clear defect in the conciliation request (such as evident lack of jurisdiction of the authority);
- the date the request was filed; and
- adherence to the three-month deadline for filing an action after receiving authorisation to proceed (Article 209(3) CPC).
The validity of the authorisation does not affect fixing or maintaining lis pendens in this context.
KEY TAKEAWAYS
The Swiss Federal Supreme Court's decision provides clear and practical guidance on previously debated issues surrounding international lis pendens. This ruling is a welcome development, as it resolves longstanding uncertainties and is both logical and effective in its reasoning. By adopting this approach, the Court encourages parties to attempt conciliation, offering a genuine opportunity to resolve disputes amicably. If the Court had ruled otherwise, claimants would have been discouraged from seeking conciliation, fearing that the defendant might initiate proceedings in another jurisdiction and thereby establish lis pendens elsewhere, to the claimant's disadvantage.
The following conclusions highlight the key lessons for litigation practice:
- Forum running—Act Fast to Secure the Swiss Forum: In cross-border legal disputes, you can establish Swiss jurisdiction—and lock in lis pendens—simply by quickly filing a facultative conciliation request, even if Swiss law does not require you to do so. For plaintiffs, this means that acting without delay and submitting a conciliation request can help you secure priority in Switzerland and avoid the risk of the defendant starting proceedings in another country first. Filing early is a strategic move to "stake your claim" in Swiss courts.
- Early Conciliation Filing Counts: If you are a defendant and receive notice that the claimant has filed a facultative conciliation request in Switzerland, expect Swiss courts to recognise the date of that request for lis pendens purposes, even if there are later disagreements over the validity of the authorisation to proceed. Swiss courts will generally respect the initial filing date, so prepare your strategy accordingly.
- Focus on the Essentials—Not Technicalities: For facultative conciliation, defects in the authorisation to proceed will not undermine lis pendens. Both plaintiffs and defendants should pay attention to two critical points: first, make sure there are no obvious (manifest) defects in the conciliation request itself, such as filing with an authority lacking jurisdiction, as they constitute the exception to the rule; second, strictly observe the three-month deadline for bringing the claim on merits after receiving the authorisation to proceed. Meeting these requirements is more important than worrying about technical defects in the authorisation document.
As a practical consideration, facultative conciliation acts as a powerful tool to establish Swiss jurisdiction in cross-border cases. Plaintiffs should act quickly to file and secure their position, while defendants should recognise that early filings are likely to be upheld. By focusing on substance over form, both sides can avoid unnecessary procedural pitfalls and ensure the case moves forward efficiently in Swiss courts. This ruling applies within the backdrop of the application of PILA in the international context. The same considerations shall, in our view, also apply within the context of the Lugano Convention. However, this is yet to receive the confirmation of the Federal Supreme Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
