Dopuszczalność wyboru prawa dla czynów nieuczciwej konkurencji w prawie kolizyjnym Szwajcarii i Unii Europejskiej
Admissibility of Choice of Law for Acts of Unfair Competition in the Private International Law of Switzerland and the European Union

Summary/Abstract: As a result of globalisation, acts of unfair competition, such as industrialespionage, are increasingly cross-border in nature. Courts are therefore confronted withthe issue of determining the law applicable to claims arising from such acts. However,this problem could often be solved by allowing the parties to choose the applicable law.Under the Rome II Regulation applicable in the European Union the possibility for theparties to choose the applicable law for acts of unfair competition arouses much controversy.Some doctrine representatives exclude such a possibility, justifying it by a literalinterpretation of Article 6(4) of the Rome II Regulation. Others point out that a teleologicalinterpretation of the Regulation should allow the parties to make a choice of law ifa given act would only infringe the interests of a designated competitor. In Swiss privateinternational law the choice of law applicable to acts of unfair competition is also a sourceof numerous doubts. The objective of this paper is to answer the question of whether thechoice of applicable law for claims arising from acts of unfair competition under the Swissand EU conflict of laws system is permissible, and if so, to what extent. Therefore, theauthor intends to analyse and confront the arguments put forward in the jurisprudenceof both legal orders.

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