Security for Costs (Switzerland) Case

Date27 Marzo 1950
Docket NumberCase No. 95
CourtCourt of Appeal of Frankfurt (Germany)
Federal Republic of Germany, Court of Appeal of Frankfurt.
Case No. 95
Security for Costs (Switzerland) Case.

Territory — Subjugation — Annexation — Effect upon Treaties.

Treaties — Termination of — As the Result of the Extinction of a State — Subjugation — Capitulation by Germany in 1945.

Treaties — Operation of — Reciprocity — Subjugation of a State — Effect of Capitulation on Treaties between Capitulating State and Neutral States — Non-Political Treaties — Convention on Civil Procedure — Continued Operation of Convention.

The Facts.—Germany and Switzerland both became parties to the Hague Convention on Procedure in Civil Cases, of July 17, 1905, by virtue of which plaintiffs of Swiss nationality were exempted from the requirement of providing security for costs in proceedings before German courts, and plaintiffs of German nationality were similarly exempted from providing security when instituting proceedings before Swiss courts. The plaintiff, a Swiss national, claimed this exemption on the ground that the Convention was still in force between the two countries. The defendant contended that in view of the unconditional surrender of Germany in 1945 the treaty had ceased to operate.

Held: that, whether or not the Convention was still in force, the plaintiff was entitled to claim exemption, on the ground that German plaintiffs before Swiss courts were entitled to the same privilege, the Swiss courts taking the view that the relative provision had become and remained part of Swiss municipal law. The Court said:

“By virtue of Article 110 of the Civil Procedure Act nationals of foreign States who act as plaintiffs are required, at the request of the defendant, to provide security for costs. If in such a case security has not been provided, the defendant shall raise the requisite plea in accordance with Article 274 (2) of the Civil Procedure Act. This provision does not apply, however, where by the laws of the country of which the plaintiff is a national a German national is not required to provide security in a similar case.1 This exception applies to the present case.

“Article 17 of the Hague Convention on Procedure in Civil Cases, of July 17, 1905, to which both Switzerland and the German Reich have acceded, provides that no security shall be demanded from the nationals of one of the Contracting States who are domiciled in one of these States and who institute proceedings before the courts of another Contracting State, merely because...

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