13 September 2018

Commencement and Conduct of Proceedings

Swiss Civil Procedure Law in a Nutshell (Volume 3 of 12)

This blog series provides litigators and corporate counsel from other jurisdictions with a practical understanding of the mechanics, advantages, and limits of litigation before State Courts in Switzerland.

Mandatory Conciliation

In general, the parties must go through mandatory conciliation proceedings before they go to court (art. 197 CPC). Consequently, the Claimant can initiate proceedings by a simple request for conciliation. If the conciliation proceedings fail, the Claimant may file its detailed Statement of Claim with the competent Court of first instance (art. 209(2) CPC). No conciliation is necessary in international setups, and no conciliatory phase is provided in Commercial Court proceedings where, however, there is a conciliatory stage after the first exchange of written briefs.

Mediation

The parties are free to replace the mandatory conciliation proceedings at the outset of any litigation with mediation proceedings (art. 213(1) CPC). At any time during the proceedings, the parties may collectively request mediation proceedings (art. 214(2) CPC). If the circumstances so provide, a Court may, at any time, suggest mediation to the parties (art. 214(1) CPC). Although the CPC is pro-mediation, parties to litigation rarely request this form of Alternative Dispute Resolution in business law matters.

Party-driven Proceedings

As a general rule, the parties must present the facts of the case and deliver the necessary proof (art. 55(1) CPC). However, if the relief sought by a party is unclear or contradictory, the Court has a duty to grant that party an opportunity to clarify by asking the appropriate questions (art. 56 CPC). In matters of individual employment law and social tenancy law for a disputed amount under 30,000 Swiss francs, the Court shall establish the facts ex officio (art. 247(2) CPC).

The CPC requires Courts to actively conduct the proceedings (art. 124 CPC). Courts are allowed to, and shall, determine the number of briefs exchanged together with the parties and organise hearings. Further, Courts may request a party to present additional evidence (art. 153(2) CPC) or upon request of a party or sua sponte appoint independent expert witnesses or other witnesses if needed (art. 170 CPC). Witnesses are interrogated by the Court and not by the parties (art. 172 CPC). Courts may also decide to bifurcate the proceedings and to first hear the parties' submissions on jurisdiction (art. 125 CPC).

Front-loaded Proceedings with Substantial Party Briefs

If the mandatory conciliation proceedings fail, the Claimant obtains leave to file its Statement of Claim. In any case, the Statement of Claim must contain an accurate description of the relief sought, a description of the matter in dispute and the name of each party (art. 221(1) CPC). Where payment of money is sought, the requested amount must be stated exactly. If an injunction is sought, the Claimant must describe the injunction requested as accurately as possible. However, the level of detail of the submissions is generally dependent on the amount in dispute.

Generally, if the amount in dispute is higher than 30,000 Swiss francs, the rules on ordinary proceedings apply (art. 229 et seq. CPC). In such a case, a Statement of Claim must contain a detailed substantiation and proof of each element of fact relevant to the claim. If a party fails to meet the requirements of substantiation, it eventually loses its claim.

In socially sensitive matters or cases in which the amount in dispute is below 30,000 Swiss francs, a simplified procedure applies with a focus on an oral hearing in Court (art. 243 CPC). Therefore, the Statement of Claim in such a case generally does not require a substantiation of the claim, but rather the submission of the relevant evidence.

High Standard for Party Briefs – Allegations and Evidence

The pleading standard of a Statement of Response mirrors the Statement of Claim and is, hence, also dependent on the amount in dispute. In any case, a Statement of Response must contain the prayer for relief, which is generally a rejection of the claim. In ordinary as well as in simplified proceedings, the Respondent must contest each allegation made by the other party and substantiate, by means of evidence, why the allegations of the Claimant do not hold true (art. 222(2) CPC).

The rules on further briefs and submissions apply to both Claimant and Respondent. As a general rule, parties should make their factual submissions as early as possible. Legal assertions and submissions can be altered or amended at any time during the proceedings.

New Allegations

Factual assertions may, generally, be amended freely during the period of exchanging briefs up until the main hearing in Court (art. 229 CPC). After this point in time, an amendment of factual assertions is only permissible in restricted circumstances (art. 229 CPC).

In simplified proceedings, where there is no second exchange of briefs, the parties are allowed to amend or alter factual assertions at the beginning of the main hearing in Court (art. 229(2) CPC).

An amendment or alteration of the prayers for relief is permitted only under restricted circumstances such as the agreement of the opposing party to the amendment or a strong enough connection with the previous prayers for relief prior to the main hearing (art. 227 CPC). After the main hearing, the prayers for relief can only be altered based on new facts that a party could not have reasonably known prior to that point in time (art. 230 CPC).

No Concept of Amicus Curiae Briefs

The concept of amicus curiae briefs is alien to Swiss law.

Limited Publicity of Proceedings

Main hearings and pronouncements of judgments are generally public (art. 54 CPC). However, TV cameras, and photographers are not allowed in courtrooms.

If a dispute involves the business secrets or personal interests of a party, the public can be excluded from the proceedings.

The parties' briefs, submitted evidence and other filings are not public and may, generally, not be consulted by anyone else but the Court and the parties.

In private law matters, judgments are published in anonymised form. Whereas the Federal Supreme Court continuously publishes all judgments on its electronic database, there are still several Cantons that have not yet established databases and do not regularly publish the judgments rendered by their Courts.

Language of the Proceedings

Switzerland has four official languages (German, French, Italian, and Romansh). Which of these languages is, or are, the language or languages of specific proceedings depends on the venue.

No Proceedings in Foreign Languages – Translation of Exhibits

It is not possible  to conduct proceedings in a foreign language such as, for example, English. By contrast, exhibits need not necessarily be translated into the language of the proceedings, unless the Court or counterparty so requests. Nonetheless, it is often advisable to translate the most relevant documents, or parts of documents, into the language of the proceedings since it is by no means guaranteed that a Judge who claims to understand documents in English is actually capable of understanding all relevant nuances.

Duration of Ordinary Court Proceedings

The duration of first instance proceedings varies from case to case due to several factors such as:

  • size and complexity of the case,
  • potential counterclaims,
  • amount and volume of the parties' written submissions,
  • the parties' conduct,
  • as well as the Court's workload.

Decisions are usually rendered within six months to three years; complex cases, however, may last considerably longer.

Author: Thomas Weibel

Prior volumes: Volume 1, Court System and Legal Profession; Volume 2, Jurisdiction

What's up next: Volume 4, Injunctive Relief

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