Revision of the Swiss Code of Civil Procedure
Following the codification and standardization of civil procedural law throughout Switzerland on 1 January 2011, the practicality and enforcement of the Code of Civil Procedure (CPC) is now to be improved after a decade of experience. After the Federal Council submitted the amendments to the ZPO for consultation on March 2, 2018, the final draft revision and the corresponding dispatch were published on February 26, 2020. On December 10, 2021, the Federal Council also adopted the dispatch on the amendment regarding representative actions and collective settlements. On September 6, 2023, the Federal Council brought the amendment to the ZPO into force on January 1, 2025. The main changes are examined below.
Reduction of cost barriers
According to Art. 98 ZPO, the plaintiff can be obliged to advance the presumed court costs in full. This represents an obstacle for those seeking justice. In future, the advance payment of court costs should only amount to half of the estimated court costs (Art. 98 E-ZPO). However, the majority of cantons opposed to this change are included in a list of exceptions which still allows an advance payment of the entire presumed court costs (disputes in international commercial jurisdiction, direct actions before the higher court, arbitration proceedings, in certain summary and appeal proceedings).
Furthermore, the state bears the risk that the advances on costs made by the successful party (or party not liable for costs) must be reimbursed to them (Art. 111 E-ZPO). Furthermore, the court costs are offset against the advances made by the party liable for costs. However, the advance paid by the party not liable for costs will be repaid and any shortfall will be claimed from the party liable for costs. The new regulation thus shifts the collection risk in this regard to the state.
E contrario to the previous case law of the Federal Supreme Court, the free administration of justice is now also granted in proceedings concerning precautionary evidence (Art. 118 para. 2 E-ZPO).
Additional powers of the conciliation authority
As in the past, the aim is to settle disputes out of court in the interests of procedural economy. Today, 50% to 60% of disputes are already settled amicably before the justice of the peace. In future, the conciliation procedure will be expanded in certain areas by giving the conciliation authority greater powers. In property disputes up to an amount in dispute of CHF 10,000, the conciliation authority will be able to submit a proposed judgment (new: proposed decision) (Art. 210 para. 1 lit. c E-ZPO). Furthermore, a voluntary conciliation procedure is to be introduced for certain disputes before a single cantonal instance (e.g. before commercial courts) (Art. 198 lit. f and Art. 199 para. 2 E-ZPO).
Creation of the possibility of international commercial jurisdiction and admission of English and other national languages as languages of procedure
Cantons are now given the authority to extend the jurisdiction of the cantonal commercial courts. The prerequisites are an amount in dispute of more than CHF 100,000, the domicile or habitual residence of at least one party abroad, the involvement of a party's business activity and an agreement between the parties regarding the place of jurisdiction (Art. 6 para. 4 lit. c E-ZPO). International civil proceedings should also become more attractive, which is why the revision of the ZPO makes it possible to conduct proceedings in English - even before the Federal Supreme Court (Art. 129 para. 2 E-ZPO; Art. 42 para. 1bis E-BGG). An exception to this is the judgment of the Federal Supreme Court, which must continue to be made in an official language. Nor can a party waive the official language(s) of the competent canton as the language of proceedings in advance (Art. 129 para. 2 lit. b E-ZPO).
Negotiations by electronic means for audio and video transmission
In future, the courts will be able to conduct simultaneous hearings by means of video conferencing and other electronic means of audio and video transmission with the consent of the parties and with the guarantee of data protection and security (Art. 141a E-ZPO). The same also applies to the examination of witnesses, questioning of parties, the giving of evidence and the provision of expert opinions (Art. 170a, Art. 187 para. 1 and Art. 193 E-ZPO).
Right to refuse to cooperate for in-house lawyers
In-house lawyers can now refuse to participate in civil proceedings (Art. 167a E-ZPO). The prerequisite for this is that the corresponding activity of the lawyer would be considered profession-specific in the case of a lawyer and that the head of the legal service has a licence to practise law (cantonal or recognized in the country of origin for the practice of the legal profession). The party concerned must also be registered as a legal entity in the Swiss commercial register or in a comparable foreign register. This is intended to address the procedural disadvantage of Swiss companies compared to companies in other countries that enjoy such a privilege. In addition, documents from dealings with a company's internal legal service now fall under the protection of Art. 160 para. 1 lit. b E-ZPO.
Further revision points
a. Facilitated coordination of proceedings (Art. 90 para. 2 E-ZPO and Art. 224 para. 1bis E-ZPO)
According to the case law of the Federal Supreme Court, it is still possible to assert different claims in the same action by means of an accumulation of actions. If different types of proceedings are involved, the claims are dealt with together in the ordinary proceedings (Art. 90 para. 2 E-ZPO). The same also applies to the counterclaim across procedural boundaries. Both for the counterclaim, which would have to be dealt with in simplified proceedings solely on the basis of its value in dispute, and for the action for a negative declaratory judgment in response to a partial action (Art. 224 para. 1bis E-ZPO).
b. Specification of the novelty barrier (Art. 229 E-ZPO)
In contrast to the Federal Council, Parliament has introduced a change to the novelty threshold in Art. 229 E-ZPO. New facts and evidence can be presented without restriction in the main hearing in the first party submission if neither a second exchange of written submissions nor an instruction hearing have taken place. In all other cases, new facts and evidence may be presented no later than the first party submission in the main hearing.
c. Private expert opinions as evidence (Art. 177 E-ZPO)
According to the previous case law of the Federal Supreme Court, party and private expert opinions do not have the quality of evidence; they are merely regarded as party assertions. The quality of party and private expert opinions as documentary evidence is now to be expressly enshrined in law. As a result, party and private expert opinions will now constitute admissible evidence, but their content will be subject to the free assessment of evidence by the court.
d. Precautionary measures against the media (Art. 266 lit. a E-ZPO)
The legislative oversight of providing for measures against periodically published media only for imminent, but not existing infringements, is corrected. In this respect, the media privilege has been restricted. The revised Code of Civil Procedure also abandons the addition of the word "particularly" to the requirement of "serious disadvantage" so that precautionary measures can be ordered (Art. 266 lit. a E-ZPO).
e. Amount in dispute for representative action (Art. 94a E-ZPO)
The amount in dispute of a representative action is determined at the discretion of the court according to the interests of the individual members of the group of persons concerned and the importance of the case.
f. Submissions to a court without jurisdiction (Art. 143 para. 1bis E-ZPO)
Petitions that are submitted on time but erroneously to a court that obviously has no jurisdiction are deemed to have been submitted on time. The court without jurisdiction forwards the petition ex officio to the competent Swiss court.
Conclusion
The revision of the ZPO, which will come into force on January 1, 2025, will improve practicability and law enforcement. By minimizing the advance on costs and passing on the collection risk to the state, access to the court should be made easier for those seeking justice. The inclusion of electronic means for audio and video transmission in hearings follows the same idea. In the interests of procedural economy, it should be possible to settle even more disputes amicably in arbitration proceedings in future. Switzerland should become a more attractive location in terms of jurisdiction in international circumstances and by allowing English and other national languages as the language of proceedings. For in-house lawyers, the right to refuse to cooperate should also apply under specific conditions in analogy to foreign companies.
Arife Asipi and Balthasar Wicki will be happy to answer any questions you may have regarding the revision of the Swiss Code of Civil Procedure and civil procedure law in Switzerland in general.