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Urs Boller
Mimoza Ademaj
In its decision 4A_180/2020 of 6 July 2020, the Federal Supreme Court dealt with the conduct of a main hearing in civil proceedings via video conference and ruled that under existing law, there is no legal basis to order a main hearing to be held via video conference without the parties’ consent.
This article is also available in German.
Facts of the Case: Order by the Commercial Court to Hold a Main Hearing Against the Will of the Appellant
Following two exchanges of written submissions and at the appellant’s written request, the Commercial Court of Zurich summoned the parties to the main hearing to be held on 7 April 2020. On 24 March 2020, the Vice-President of the Commercial Court informed the parties that the main hearing would be held via video conference using the free app ‘ZOOM Cloud Meetings’ via their mobile phones. The parties were requested to provide the Court with their mobile phone numbers in advance and were informed that, if they would fail to do so, the Court would assume default with regard to the main hearing. Furthermore, the Court invited the parties to send any pleading notes at the beginning of the hearing by e-mail to the competent court clerk, the judge and to the opposing party.
On 30 March 2020, the appellant requested the Court to cancel and postpone the main hearing of 7 April 2020 on the grounds that it did not agree with the oral hearing being held via video conference. The request was rejected. Following the appellant’s repeated submission and despite its request of 6 April 2020 for a “summons to an oral main hearing conducted in accordance with the law“, the main hearing was held on 7 April 2020 via video conference without the appellant’s participation. Subsequently, the Commercial Court fully granted the defendant’s action in its judgment of the same day.
The appellant appealed against the judgment and objected to the conduct of the main hearing by means of video conference without its consent. It brought an action before the Federal Supreme Court claiming the infringement of its right “to the conduct of an orderly main hearing“.
The Federal Supreme Court granted the appeal. The decision is based on the following considerations:
No Legal Basis in the Civil Procedure Code for Ordering a Main Hearing via Video Conference Without the Consent of Both Parties
The Federal Supreme Court states that the Swiss Civil Procedure Code conceives the main hearing as constituting “an oral hearing in the courtroom in the physical presence of the parties and of the members of the court“. The Federal Supreme Court refers to various provisions in the law, which indicate that with regard to the main hearing “the physical presence of the parties summoned and the members of the court in the same place is taken for granted” (consid. 3.2.).
This concept was indeed the legislator’s intended choice. The possibility of holding oral hearings by means of audio, video or e-mail conference had specifically been considered by the legislator in the course of adopting the Civil Procedure Code, but did eventually not prevail (consid. 3.3.).
The Federal Supreme Court finally states that – and this is crucial – the Civil Procedure Code does not offer any means to oblige a party to participate in a hearing conducted by way of video conference (consid. 3.6.). The legal and practical questions raised by the Federal Court in this context with regard to the guarantee of publicity of the proceedings (Article 54 CPC), the safeguarding of the personal rights of the parties involved, the compliance with data protection and data security regulations, the failure to attend the main hearing (Article 234 CPC), the relation to the right to equal and fair treatment (Article 29(1) of the Federal Constitution and Article 6(1) of the ECHR) and the “principle of immediacy” remained unexamined (consid. 3.5.).
In conclusion, the Federal Supreme Court clarifies that under the current Civil Procedure Code, the law does not provide for the possibility of video conference as a means to hold the main hearing and that, consequently, the order to conduct the main hearing in such a form without the consent of the appellant lacks legal basis (consid. 3.7.).
No Prejudging of the Development of the Law by the Judge
The Federal Supreme Court takes note of the current legislative developments regarding the taking of certain evidence by means of video conference (consid. 3.4.) However, there should be no prejudging of this development based on “case law”. The actions of the Commercial Court can neither be justified by the fact, as put forward by its Vice-President, that it was difficult to find a date for a main hearing with the parties nor by the constitutional requirement to speed up the proceedings (consid. 3.6.).
No Applicability of the COVID-19 Ordinance
The Federal Supreme Court also examines whether the “pandemic crisis”, to which the Vice-President had referred, justified such an order. The Federal Supreme Court notes that the Federal Council Ordinance of 16 April 2020 on measures in the field of justice and procedural law relating to the coronavirus (COVID-19 Ordinance on Justice and Procedural Law; SR 272.81 [COVID-19 Ordinance]) provides in Article 2 for the possibility of conducting hearings by video conference. Referring to the explanatory notes on the Ordinance published by the Federal Office of Justice, it states that this possibility should only be used in exceptional cases, even under “emergency law” (consid. 4.1. – 4.3.). Irrespective of these considerations, the Federal Supreme Court rejects the COVID-19 Ordinance as a possible legal basis for the Commercial Court’s action; the main hearing in dispute had been held on 7 April 2020 and thus before the COVID-19 Ordinance entered into force on 20 April 2020. Under these circumstances, the Federal Supreme Court refrains from examining the constitutionality and legal conformity of the COVID-19 Ordinance (consid. 4.4.).
No Basis for the Order in “Case Law”
Finally, the Federal Supreme Court also rejects “case law” as a basis for the Court’s order to conduct a main hearing via video conference. It states that “even and especially in an exceptional situation it is up to the legislator to create and specify the legal grounds for mandatory electronic communication between the court and the parties in civil proceedings“. Due to the exhaustive rules provided by the law, there was no room for gap filling based on case law (consid. 5.).
Comments on the Decision
With this leading decision, the Swiss Federal Supreme Court ruled that the Civil Procedure Code in the version applicable at the time (and still in force today) does not allow a main hearing to be conducted by means of video conference against the will of one of the parties. Rather, the parties are entitled to have the main hearing held in the physical presence of the parties and the members of the court. The courts are thus prohibited from using “judicial gap filling” to restrict this right in favour of electronic forms of communication. This also applies in times of the corona pandemic and any uncertainties associated with it.
The present case is based on a rather singular constellation, insofar as the decision of the Commercial Court was issued at a time when a prevailing state of crisis due to the COVID-19 pandemic already considerably restricted the orderly conduct of court proceedings, but no specific regulations regarding the resumption of the court’s activity were available. It was not until 16 April 2020 that the Federal Council issued the COVID-19 Ordinance, which explicitly states that court hearings can be conducted by video conference. According to Art. 2 para. 2 of this ordinance, the holding of the main hearing by means of video conference is permitted if the parties agree or if there are important reasons – in particular, urgency – to do so. Hence, if the Commercial Court would have had to rule upon the same issue under the Ordinance, this would have raised the question whether important reasons were given justifying the hearing to be held by video conference against the will of one of the parties.
The COVID-19 Ordinance is (presumably) only applicable until 30 September 2020. As from 1 October 2020, until a possible change in the law, the legal situation as clarified by the Federal Supreme Court will remain as such, meaning that hearings can only be conducted by video conference if the parties agree.
In view of the present ruling, it appears as if the Federal Supreme Court is rather critical of the possibility of electronic forms of communication. For example, the Federal Supreme Court raises various procedural issues in connection with the conduct of hearings by video conference. Furthermore, the Federal Supreme Court points out that data protection and data security regulations must be observed. Against this background, it is understandable that the Federal Supreme Court demands that the legal basis for electronic communication in court proceedings be created and specified by law and regulation and that it does not wish to leave this to the discretion of the courts.
That being said, it is regrettable that the Federal Supreme Court, on the basis of its clear assessment, does neither comment on these procedural issues, nor on the security concerns regarding the use of the “ZOOM Cloud Meetings” app, or even on the question regarding the constitutional and legal conformity of the COVID-19 Ordinance. In view of the continued applicability of the COVID-19 Ordinance until the end of September 2020 as well as the possibility to conduct hearings via video conference with the agreement of all parties, the clarification of these questions by the highest court would have been desirable.
Legal Update after the Publication of the Blog
Following the publication of this blog, on 25 September 2020 the Federal Assembly adopted the “Federal Act on the legal basis for ordinances of the Federal Council to deal with the Covid-19 epidemic” (SR 818.102 [COVID-19 Act]), which came into force on 26 September 2020. The COVID-19 Act is subject to a facultative referendum.
With the implementation of this law, the questions raised by the Federal Supreme Court regarding the constitutional and legal conformity of the COVID-19 Ordinance, which were left unresolved, do no longer require an answer by the Federal Supreme Court.
Furthermore, in the meantime, the applicability of the COVID-19 Ordinance was extended until 31 December 2021 (Article 10 para 3 COVID-19 Ordinance). Due to this extension, it would have been all the more desirable that the Federal Supreme Court would have examined the issues raised by it in connection with the possibility to conduct hearings via video conference. However, given this extended period of validity of the COVID-19 Ordinance, the Federal Supreme Court might have the opportunity to comment on this issue in more detail on another occasion.
