The Federal Council decided on 6 September 2023 that the first major revision of the Swiss Code on Civil Procedure ("CCP"), as the Swiss parliament adopted it on 17 March 2023, will enter into force on 1 January 2025. Hence, everyone should have sufficient time to implement the new rules (e.g. by revising existing decrees and laws) and prepare for them.
The revised CCP encompasses various modifications, the most important of which we will comment in the following (all modifications may be accessed here, German and French only).
- Possibility to establish international commercial
courts: The revised CCP allows the cantons to establish
international commercial courts. The cantons may declare the
commercial court competent if a litigation relates to at least one
party's business activity, the amount in dispute exceeds CHF
100'000, the parties agree on the jurisdiction of the
commercial court and if at least one party has its seat outside
Switzerland when it agreed to the jurisdiction of the commercial
court.
Should the cantons make use of this possibility to establish international commercial courts, litigation in Switzerland would become even more attractive. The international commercial tribunals will have special expertise and experience. The parties will also be able to agree on the exclusive jurisdiction of these specialized courts. This would give the parties the comfort that any future dispute would exclusively be assessed and decided by a particularly suitable and experienced state court.
Promising candidates for the introduction of international commercial courts are in particular the Cantons of Zurich and Geneva, which both are well-established business-hubs.
- English as language of proceedings in international
commercial disputes: In connection with the possibility to
establish international commercial courts, the use of English as
the procedural language is of preeminent importance. According to
the revised CCP, the cantons may introduce English as the
procedural language for international commercial disputes (in the
sense as explained above) in front of the commercial court and
ordinary courts. However, the Swiss Federal Supreme Court will
continue to conduct its proceedings in a national language, whereas
the parties can use English in their submissions.
- Reduction of the advance on court costs: In
the future, the advance on court costs will generally be limited to
half of the expected court costs. In comparison: Under the current
law, the courts may request an advance on court costs in the full
amount of the expected court costs – in practice, the courts
do so without exceptions. The revised regulation should faciliate
the access to the courts. However, there are numerous exceptions
from the new principle, e.g. in international commercial disputes
(cf. above) or in appeal proceedings.
In contrast, there will be no changes to the cantons' powers to determine the tariffs relevant for the determination of the court costs. Hence, the costs connected with conducting civil proceedings will continue to differ substantially from one canton to the other.
- The state bears the risk of collecting the court
costs: In the future, the courts will refund the winning
party (resp. the party that is not liable for costs) the advance on
costs that it paid. This is in contrast to the current regulation
according to which the courts also set off the advance on costs
paid by the non-liable party with the court costs. As a
consequence, the party not-liable for costs (which was obviously in
most cases the winning party) had to re-cover the court costs from
the opposing party who was liable to pay costs. The non-liable
(usually winning) party thus had to bear the risk of the opposing
party's default. Under the revised rule, this risk lies with
the state.
- Court hearings by video conference: The courts
may in the future conduct oral procedural acts, as for example
court hearings, by electronic means, in particular by video
conference. However, all parties have to agree and there must be no
legal provisions to the contrary.
- Privilege rights for activities of a party's
in-house legal department and in-house legal counsels: In
the future, a party may refuse to cooperate and produce documents
in the context of in-house counsels' activities. Such refusal
will require that the party is registered in the Swiss commercial
register or in a comparable foreign register, that the legal
department is headed by a person admitted to the bar and that the
respective activity would be part of the privileged activities if
it were conducted by an attorney. In addition, third parties (e.g.
an in-house counsel employed with a party) have the same right
under the same conditions in the context of their work in the
in-house legal department.
- Interim measures against the media – softening of the requirements: One of the requirements to claim a court order for interim measures against a periodically appearing medium will be softened. The looming infringement does not have to cause a "particularly serious disadvantage" to the concerned party any longer. Rather, a "serious disadvantage" will be sufficient. Whether this amendment will lead to a change in case law is yet to be seen. The further requirements for granting an interim measure against a periodically appearing medium (i.e. obvious lack of a justification; the measure is not disproportionate) remain unchanged.
Not part of the revision at hand are matters concerning collective actions (or cl
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.