ARTICLE
3 December 2024

Civil Procedure Code (CPC): The Cut-off Date For New Allegations And Evidence Under Revised Swiss Civil Procedure Law – A Practical Explanation

The Swiss Civil Procedure Code (CPC) will be revised on 1 January 2025. This also includes a revision of the law on new allegations and evidence.
Switzerland Litigation, Mediation & Arbitration

The Swiss Civil Procedure Code (CPC) will be revised on 1 January 2025. This also includes a revision of the law on new allegations and evidence. This change concerns the extent to which new facts and evidence may be (subsequently) introduced in ongoing proceedings. It ensures that the process is organised and efficient by specifying the deadline by which all relevant information must be submitted. The following is an overview of the most important changes:

1. Starting point

In civil proceedings, the cut-off date protects the parties from being constantly surprised with new evidence or arguments in the course of the proceedings. In practice, the point at which new facts or evidence ("nova") may no longer be considered without restriction is important for the course of the proceedings. Previously, this was regulated by art. 229 aCPC. With the upcoming reform, these rules will be reorganised. The aim of the legislator was to make the handling of the law on nova clearer and more practicable.

During the parliamentary deliberations, the adjustment of the cut-off date for new allegations and evidence, i.e., the point in time until which new facts and evidence can be introduced into the proceedings without restriction, proved to be a controversial topic.

2. Right to submit nova before the cut-off date

The cut-off date is a central point in the proceedings. It occurs as soon as the parties have been able to express themselves twice without restriction. If this had not been completed before the main hearing, the Federal Supreme Court required under the old law that the new facts and evidence had to be presented at the very beginning of the court hearing, in a separate oral statement before the actual party submissions. This created issues since it was not always practicable to differentiate between two separate oral submissions, with the result that some harsh decisions on missing the right time to present new facts and evidence were rendered.

According to the new regulation, the following applies: As long as the cut-off date has not yet been reached, the parties may submit new facts and evidence without restriction as part of their first party submission in the main hearings. This new rule removes the previous uncertainty as to when and how new facts and evidence may still be submitted without restriction in the context of the court hearing. The requirement for a separate, early presentation of facts before the actual party submissions has thus been removed, making the process clearer for all parties involved.

3. Right to submit nova after the cut-off date

After the cut-off date, new facts and evidence can only be submitted in very limited circumstances. This is possible if the new fact or evidence either occurred only after the cut-off date (proper nova) or could not have been submitted before the cut-off date despite reasonable care (improper nova). The new provision in art. 229 para. 2 and para. 2bis nCPC allows more flexibility as to how such nova may be submitted after the cut-off date. Under the old law, proper and improper nova had to be submitted "without delay" after the cut-off date. Under the new CPC, they must either be submitted within a time-limit set by the court or, if no time-limit is set, at the latest in the first party submission in the main hearing.

Art. 229 para. 2bis nCPC now explicitly stipulates that, under certain conditions, proper and improper nova can still be considered after the first submissions of the parties at the main hearing. The prerequisite is that they are submitted after their occurrence or discovery, at the next hearing, or within a time limit set by the court.

In practice, the new regulation means more clarity and legal certainty. Nova that arise, for example, due to a change in circumstances or that could not be brought forward earlier despite best efforts on the part of the party, must be introduced into the proceedings at the next hearing at the latest. This change eliminates the need for a strict and difficult-to-handle "without delay" rule, which had previously often led to uncertainty in case law.

4. Outlook

The revised CPC rules on new facts and evidence have practical advantages and will clarify the procedural process. In particular, the abandonment of the "without delay" rule should provide more legal certainty and make the course of proceedings easier to plan.

However, not all questions have been resolved. For example, the judicial handling of the new rules could vary in practice, particularly with regard to the interpretation of the new time-limits. It also remains unclear how courts will proceed if the main hearing is waived, and parties nevertheless wish to submit new facts and evidence.

The VISCHER dispute resolution team is always at your disposal to provide legal advice in dispute situations and to represent your interests in the best possible way. This includes dealing professionally with the new CPC regulations on the cut-off date and the limits on submission of new facts and evidence.

Here you will find the overview of the CPC blog series.

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.

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