The Swiss Civil Procedure Code (CPC) contains various instruments for the coordination of proceedings. For example, art. 90 CPC provides for the possibility to combine actions. This allows a claimant to combine several claims against the defendant in the same proceedings, provided that certain requirements are met. The CPC also provides another instrument designed to simplify litigation proceedings: the counterclaim. If a party is sued, it can, in certain circumstances, choose not to limit itself to contesting the claimant's claim, but counterclaim and assert its own claims against the claimant in the same proceedings.
The instruments for coordinating proceedings, including the above-mentioned combination of claims and counterclaims, are to be optimised when the revised CPC comes into force on 1 January 2025 in order to further enable a joint and coordinated assessment when several matters are in dispute.
1. Combination of actions (art. 90 para. 2 nCPC)
Art. 90 para. 2 nCPC codifies the previous case law of the Federal Supreme Court, according to which the claimant can assert several claims in a single action even if these claims are subject to different substantive jurisdiction or types of proceedings solely on the basis of the amount in dispute.
Example: An employee wishes to take legal action against his employer to enforce both an outstanding salary claim (CHF 30'000) and compensation for wrongful dismissal (CHF 18'000). The problem here is that these claims are subject to different types of proceedings. Simplified proceedings (arts. 243 et seqq. CPC) are characterised by quick and efficient settlement and apply to claims of up to CHF 30'000 and other specific cases specified by law (art. 243 para. 2 CPC). Ordinary proceedings, by contrast, generally apply to disputes involving amounts in dispute of over CHF 30'000. Consequently, the salary claim would have to be assessed in an ordinary proceeding, whereas the compensation claim would have to be assessed in a simplified proceeding. This would preclude an objective aggregation of claims and thus a joint assessment in the same proceeding. However, art. 90 para. 2 nCPC now provides that claims to which different types of proceedings apply only as a function of their amount in dispute may be assessed together. Consequently, in future the salary claim and the claim for damages due to unfair dismissal can be assessed together in a single civil action in ordinary proceedings (art. 90 para. 2 sentence 2 nCPC).
2. Counterclaim (art. 224 para. 1bis nCPC)
Under the new provisions, a counterclaim is also admissible and is to be judged together with the main action in ordinary proceedings, if:
- "the claim asserted is only to be assessed under the simplified procedure because of the value in dispute, but the main action is to be assessed in the ordinary procedure" (art. 224 para. 1bis lit. a nCPC).
- "the counterclaim seeks to establish the non-existence of a right or legal relationship after only part of a claim arising from this right or legal relationship has been asserted in the main action and the simplified procedure therefore only applies because of the value in dispute" (art. 224 para. 1bis lit. b nCPC).
The CPC allows the claimant to assert only part of the claim in one process (partial action) in order to keep the court costs, which are usually based on the amount in dispute, low and to keep the proceedings simple and expeditious. If the claimant is successful in the partial action, it could, strengthened by the success experienced in the initial proceedings, still sue for the remaining amount in subsequent proceedings if the defendant does not voluntarily settle the entire claim after the initial proceedings in order to avoid additional costs. However, the defendant may have an interest in obtaining clarity regarding the entire claim from the outset in the initial proceedings. Art. 224 para. 1bis lit. b nCPC therefore offers the possibility of enforcing the assessment of the entire claim by means of a counterclaim for a negative declaratory judgment in the initial proceedings. In other words, this provision codifies the previous case law of the Swiss Federal Supreme Court according to which a defendant may file a counterclaim for a negative declaratory judgment as a defence to a partial claim and have it adjudicated in the same proceedings, even if the counterclaim would actually have to be adjudicated in ordinary proceedings and the partial claim in simplified proceedings due to the amount in dispute.
Example: A building contractor carried out construction work on a client's house. After the work was completed, the client refused to pay the outstanding balance for the work (CHF 80'000) because he believed that there were defects. The contractor files a lawsuit against the client, demanding part of his claim (CHF 30'000) without claiming the entire outstanding balance for the work immediately. In response, the client files a counterclaim for a negative declaratory judgment because he wants to be sure that the entire remaining claim no longer exists due to the alleged defects.
3. Instruments for optimised process management
The CPC provides for instruments to facilitate the coordination of proceedings. The new provisions in the CPC provide for instruments to simplify and improve the coordination of proceedings.
The VISCHER dispute resolution team will be happy to assist you in achieving your goals and in making use of the new procedural coordination measures in an efficient manner to expedite the process and avoid unnecessary costs. Contact us and take advantage of our expertise.
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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.