Positive vs. negative Zuständigkeitskonflikte im internationalen Erbrecht

Patrick Dietrich

If a person with a cross-border connection dies, the question arises as to which state has jurisdiction over the
estate. Difficulties arise when multiple states claim jurisdiction or when no state considers itself responsible.
The former scenario is known as a positive conflict of jurisdiction, while the latter is referred to as a negative
conflict of jurisdiction. In such cases, Swiss courts play a key role, as they can influence whether a conflict of
jurisdiction arises. This article shows that in cases involving the jurisdiction of the location of assets according
to Article 88 PILA, Swiss courts should deliberately accept positive conflicts of jurisdiction to avoid negative
ones, as positive conflicts of jurisdiction tend to cause less problems in practice. The article also examines
whether this argument can be extended to cases involving the jurisdiction based on the last domicile according to Article 86 PILA, as well as to cases based on the jurisdiction at the place of origin under Article 87 PILA.