Lis Pendens In Switzerland: 5A_114/2025 & Swiss Torpedo

In its landmark decision BGer 5A_114/2025 of 13 January 2026, the Swiss Federal Supreme Court has clarified the question of when proceedings are considered pending in Switzerland and thus block a lawsuit abroad. Due to the low-threshold access to justice and the Swiss Civil Procedure Code, it confirmed that "forum running" is quite easy in Switzerland.

Facts

The testator, who died in France in 2019, was survived by his wife and a daughter, who lived in the USA. From a previous marriage, he had three sons who resided in the USA, France, and Great Britain.

On 3 June 2020, in conciliation proceedings, the wife had requested the division of matrimonial property as well as the determination and division of the estate taking into account of certain gifts made by the decedent.

By decision of 29 June 2020, the conciliation authority had summoned the parties to a hearing on 21 September 2020.

In a letter dated 3 August 2020, the son living in the USA had contested the jurisdiction of the conciliation authority and announced proceedings in France. The son living in France too had contested jurisdiction in Switzerland.

Only the wife appeared at the conciliation hearing, whereupon the conciliation authority issued the authorisation to proceed.

Before the wife had filed her action with the Swiss court, the son living in France had filed an action in the same matter with a French court. In response, the wife and daughter raised the objection of lis pendens and lack of jurisdiction in favour of Switzerland. The wife subsequently filed her action in Switzerland. The sons' objections of lack of jurisdiction were dismissed.

Decision

Establishment of Lis Pendens

According to Art. 9 para. 2 PILA, the time of the first procedural act necessary to initiate the action is decisive for determining lis pendens. According to Art. 9 para. 2 PILA, the initiation of conciliation proceedings is sufficient as a necessary procedural act to establish lis pendens.

Previously, the Federal Supreme Court had only adjudicated cases in which conciliation proceedings were mandatory due to a compulsory conciliation requirement. In the present case, it has now decided that the filing of a request for conciliation in proceedings not subject to compulsory conciliation under Art. 199 para. 2 CPC is also sufficient to establish lis pendens.

Thus, the filing of the request for conciliation establishes lis pendens, regardless of whether the proceedings are mandatory or voluntary.

Defective Authorisation to Proceed

The Federal Supreme Court further examined how the fact that a summons was not, or not properly, served affects the validity of the authorisation to proceed.

In principle, procedural errors lead to the invalidity of the authorisation to proceed. However, if the conciliation proceedings are voluntary because the defendants reside abroad (Art. 199 para. 2 CPC), the authorisation to proceed is not a procedural prerequisite for the action before the court of first instance. It would also be excessively formalistic to interpret the error of the conciliation authority to the detriment of the claimants and to deny lis pendens.

Although the son living in the USA had not been properly summoned, which would prevent the issuance of the authorisation to proceed in mandatory conciliation proceedings, the Federal Supreme Court held that this did not prevent lis pendens in voluntary conciliation proceedings.

Consequently, lis pendens occurred upon filing of the request for conciliation. The formal defect of the authorisation to proceed was cured due to the voluntary nature of the proceedings, and lis pendens was maintained by the filing of the action before the court of first instance.

Take-Away

The decision clarifies a disputed issue that is relevant in practice and was previously uncertain. It strengthens the position of conciliation proceedings and encourages parties to conduct them even when they are voluntary. From a practical point of view, the following points should be highlighted:

Forum Running

In international disputes, the jurisdiction of Swiss courts and lis pendens can be established by filing a voluntary request for conciliation. Immediate filing can provide a tactical advantage in litigation and secure adjudication by Swiss courts.

Swiss Torpedo

With this new case law, the Federal Supreme Court simplifies the so-called "Swiss Torpedo": by quickly initiating conciliation proceedings in Switzerland, a threatened lawsuit abroad can be blocked or delayed – it is virtually "shot down."

Filing of the Request for Conciliation Counts

For a defendant who receives notification of a request for conciliation in Switzerland, the decision creates clarity: the date of filing establishes lis pendens. A subsequent filing of an action with another court is futile, as the foreign courts will not hear the action due to already established lis pendens. This principle arguably also applies within the scope of the Lugano Convention.

Curing of Defects by the Conciliation Authority

A defective authorisation to proceed from voluntary conciliation proceedings does not affect lis pendens. It should be noted, however, that an obvious defect in the proceedings or in the authorisation can also lead to nullity here. In addition, the strict three-month period for filing an action after receipt of the authorisation to proceed must be observed. If this period expires unused, the original lis pendens, which relates back to this point in time, also expires.

The decision enables claimants in international disputes to establish the jurisdiction of Swiss courts quickly and with a low threshold.

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.