Einige erklärende Bemerkungen zum ominösen dritten Satz von Art. 91 Abs. 1 revIPRG

Thomas M. Mayer

The paper discusses the last sentence of the revised Article 91(1) of the Swiss Federal Private International Law Act (PILA). The provision was added by Parliament at the last minute as a compromise and makes the option of a bi-national Swiss testator to choose the law of his other state of origin subject to a reservation in favour of Swiss forced heirship law. In a first step, the author outlines the genesis of the provision during the parliamentary deliberations and shows its purpose. He then explains the substantive scope of the reservation. The first subchapter identifies the legal issues covered by it. The second and third subchapter discuss the conditions for application of the reservation and the way it works, the main conclusion being that the reservation applies where, in the absence of a choice of law under Article 91(1) PILA, the succession would be governed by Swiss law pursuant to Article 90 PILA and the deceased was a Swiss citizen at the time of his death. The fourth subchapter explains why the reservation still applies where the law chosen by the testator provides for stricter rules on forced heirship than Swiss law.