Contacts
On 6 September 2023, the Swiss Federal Council decided to enter the amendments to the Swiss Civil Procedure Code (“CPC“) into force on 1 January 2025. The new provisions address long-criticized issues, in particular, facilitating access to courts and improving the efficiency of law enforcement.
1. International Commercial Courts
In our opinion, Switzerland is rightly following the trend that has emerged inter alia in Singapore, Germany and France, namely the creation of an international commercial court. As part of the revision of the CPC, the cantons will be given the power to create specialized courts or court chambers for international commercial disputes.
Switzerland is thus expanding the excellent reputation it already has for international arbitration courts into an international court of justice for commercial matters. By creating the said court, Switzerland is strengthening its position as a renowned “legal hub”.
Cantons that wish to create such a specialized international commercial court shall have the authority to assign specific cases to said court – over and above the current rules on jurisdiction. As such, the following 4 conditions must be met:
- The business activity of at least one party is affected. However, no registration as a legal entity in a (Swiss or foreign) commercial register is required.
- The dispute must be of a pecuniary nature and the amount in dispute must be at least CHF 100,000.
- The consent of the parties is required for the commercial court to have jurisdiction in these cases.
- At least one party must not be domiciled or have its registered office in Switzerland at the time of consent.
In connection with the creation of international commercial courts, the possibility of conducting proceedings in English is now also provided for (Art. 129(2) CPC). Proceedings can only be conducted in English if a request has been submitted by all parties involved. However, this requirement should be easy to fulfill, as English as the language of proceedings can already be stipulated in the corresponding jurisdiction clause of the agreement in question.
2. Legal Costs
One key amendment is the facilitation of access to justice for persons without the necessary funds to retain an attorney at law, despite not meeting the standard legal aid requirements under Art. 117 CPC. In particular, the provisions regarding advances on costs and the liquidation of legal costs were adjusted.
a. Advances on costs
Advances on costs pursuant to Art. 98 CPC must no longer be paid in full, but the advance is limited to a maximum of half of the estimated court costs. This is a significant reduction of the access to justice barrier.
However, there are exceptions whereby the advance payment is demanded up to the amount of the total presumed court costs in the cases mentioned in Art. 98(2)(a-d) CPC:
- If the commercial court is declared to have jurisdiction pursuant to Art. 6(4)(a-d) and Art. 8 CPC
- Conciliation procedure
- Summary proceedings with the exception of conservatory measures (interim injunctions) under Art. 248(d) CPC and family law disputes under Articles 271, 276, 302 and 305 CPC
- Appeal procedure
b. Liquidation of legal costs
The court costs will continue to be offset against the paid advance made by the party liable for costs. However, in contrast to the previous CPC, the advance which is paid by the party not liable for costs will be repaid by the court. Any shortfall will now be claimed from the party liable for costs (Art. 111 CPC). This means that the parties no longer bear the collection risk of the other party, but rather the state.
3. Process Co-ordination
The existing rules for the coordination of proceedings will be improved in order to enable more joint and coordinated civil actions. Pursuant to Art. 90(2) CPC, it will be possible to combine civil actions of different types of proceedings in the regular civil proceedings pursuant to Art. 219 CPC. Moreover, counterclaims are always to be processed in the regular civil proceeding if the main civil action is under the regular civil proceedings pursuant to Art. 219 CPC. In addition, counterclaims for declaratory action are to be processed in the regular civil proceedings if the party in the main proceeding has initiated partial action in the simplified procedure.
4. Conciliation Procedure
As the conciliation procedure has proven to be an extremely efficient and cost-effective dispute resolution mechanism, the competencies of the conciliation authorities are to be expanded. Conciliation proceedings will now be used in a number of new disputes (Art. 5(1) lit b & d-i, 6 & 8 CPC). In addition, the authority to propose court orders will be increased from CHF 5,000 to CHF 10,000. However, the competence of the conciliation authorities to issue a binding court order for claims not exceeding CHF 2’000 remains unchanged.
5. Right to Refuse Co-Operation for In-House Councils
The revision of the CPC now also clarifies a long-discussed issue, namely the right of in-house counsel to refuse to co-operate. An in-house counsel may refuse co-operation if their employer is registered in the commercial register and the respective in-house counsel has passed the bar exam, without being registered in the cantonal bar.
6. Family Procedural Law
The practicality of the CPC in the context of family procedural law is to be improved with the revision. Specifically, contentious proceedings under family law are to be dealt with in the simplified procedure in the future, insofar as the summary procedure is applicable. In addition, the so-called principle of investigation and ex officio proceedings will generally apply to independent actions concerning child matters.
7. Documentary quality of private expert opinions of the parties
Contrary to the previous Federal Supreme Court case law, these are now to be assessed as documents, which gives them the quality of evidence. As such, party or private expert opinions are of course also subject to the free assessment of evidence by the court, and their probative value is therefore determined in the specific individual case, taking all circumstances into account.
8. Nova in proceedings with an unrestricted principle of investigation
In proceedings with an unrestricted principle of investigation, the parties may submit nova from 2025 onwards in appeal proceedings, even if the requirements of Article 317(1) CPC are not met.
9. Further amendments
There will also be numerous minor and editorial changes. For example, witness hearings and party questioning can also be conducted by video conference. In special circumstances, such as urgency, a telephone conference is possible. Participants can be connected electronically, provided that technical requirements, data protection and data security are guaranteed. Also, the requirements to initiate precautionary measures against media have been facilitated.
Concluding remark
The amendments to the CPC, set to take effect on 1 January 2025, represent a comprehensive effort to address longstanding issues, enhance accessibility to the legal system, and improve the enforcement of laws. Overall, these amendments signify a forward-looking approach to legal proceedings, aligning Swiss civil procedure with contemporary needs and international standards. The measures taken not only enhance access to justice but also position Switzerland as a jurisdiction that adapts to evolving legal landscapes.
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