Revision of the Swiss Code of Civil Procedure as of 1 January 2025

International commercial jurisdiction

The cantons of Zurich, Bern, Aargau and St. Gallen currently have commercial courts. The revision creates the basis for the cantons to declare that the commercial court has jurisdiction for certain cases of international commercial disputes in addition to the existing jurisdiction. The prerequisite for this is that local jurisdiction exists in the relevant canton, which can usually be achieved with a contractual choice of forum clause. It is also necessary that the dispute concerns the business activities of at least one party, that the amount in dispute is at least CHF 100,000 and that the parties agree to the jurisdiction of the commercial court. In several cantons, among others Zurich and Geneva, legislation is in the pipeline to implement these new provisions.

English as the language of the proceedings

Along with the introduction of international commercial jurisdiction, the rules on the language of the proceedings will be liberalised. Currently, court proceedings must be conducted in the official language of the competent canton. The cantons can now provide that the proceedings can be conducted in another national language, in cases of the aforementioned international commercial jurisdiction, also in English. However, the parties must request this.

Furthermore, under the new law, the cantons may provide that ancillary proceedings conducted before state courts in support of arbitration proceedings (such as those relating to the appointment of arbitrators, co-operation in the taking of evidence, etc.) be conducted in English at the request of the parties if the arbitration agreement is drafted in English or if the arbitration proceedings are conducted in English.

Court hearings via video or telephone conference

Nowadays, video conferencing has become an integral part of the business world. Until now however, there has been no legal provision for court hearings to be held by video conference in civil proceedings (save a temporary exception during the Covid pandemic).

With the consent of the parties, the courts can now hold hearings by video conference (and exceptionally by telephone conference). On the one hand, it is possible for the court hearing to be conducted purely virtually; on the other hand, a hybrid form is also possible, in which the court hearing takes place physically and individual participants (such as party representatives, witnesses, experts) join in via video and audio transmission.

However, it should be noted that this new regulation cannot be applied unconditionally to foreign parties and witnesses: the judicial hearing of a person residing abroad generally constitutes a violation of the sovereignty of the foreign state. It is therefore necessary for the law of the state in question to authorise such cross-border action by a Swiss court in the first place. Conversely, if a person residing in Switzerland is to be heard for foreign court proceedings via video or telephone conference, authorisation from the Federal Office of Justice is required. However, efforts are underway to waive the authorisation requirement under certain conditions.

Legal privilege for the in-house legal department

Lawyers have the right to refuse to testify during legal proceedings and documents exchanged with a lawyer must not be produced. Until today, however, this only applied if the lawyer concerned was an external lawyer. The legal privilege now also extends to the activities of a company’s in-house legal department. However, one of the prerequisites is that the activity in question is one that would be regarded as privileged if it were performed by an external lawyer.

Private expert opinion as evidence

Under current law, an expert opinion only has evidential value if it is a court-ordered expert opinion. In practice, however, it often happens that the parties themselves obtain an expert opinion. Under existing law, such a private expert opinion is regarded as a mere party assertion and does not constitute evidence.

According to the revised Code of Civil Procedure, private expert opinions are not treated in the same way as expert opinions obtained in court. However, they are now categorised as physical records, which means that they are formally regarded as evidence. As evidence, the private expert opinion is subject to the free assessment of evidence by the court. When assessing the evidence, the court will also have to take into account, among other things, what the expert’s relationship to the parties is, whether he is sufficiently competent and how he was instructed.

More claimant-friendly cost regulation

The current law is not very claimant-friendly with regard to court costs: as a rule, the claimant must advance the entire court costs. If the action is upheld, the court will order the defendant to pay the costs. However, the court is paid out of the advance on costs, while the successful claimant must claim reimbursement of the costs from the defendant. The claimant therefore bears the collection risk for the court costs.

According to the revised CCP, the court can only demand a maximum of half of the expected court costs from the claimant (subject to exceptions), which will facilitate access to justice. In addition, the court will only retain an advance on costs to the extent that the party who has made the advance is obliged to pay the court costs. This means that the advance of costs will be reimbursed to the winning claimant. On the other hand, the court must recover the costs from the losing defendant, who is liable for the costs.

Simplified interruption of the limitation period

The creditor can interrupt the limitation period by, among other things, initiating debt enforcement proceedings against the debtor, which is inexpensive and does not take a great deal of time. However, this option is not available if it is not a monetary claim or if the debtor cannot be sued in Switzerland, e.g. because he is domiciled or resident abroad. In such a case, the creditor must file a court action to interrupt the limitation period. This can be time-consuming and expensive if the proceedings are such that the action must be filed directly with the court without the possibility of going through (cost-effective) conciliation beforehand, as is the case with commercial court proceedings, for example.

In certain cases where, under previous law, a claim had to be submitted directly to the court, a request for conciliation can now be submitted to the conciliation authority first. This now makes it possible for the creditor to interrupt the limitation period with a simple and inexpensive step if necessary.

Further adjustments

In the course of the revision, further selective adjustments will be made to the CCP, which will make the CCP more user-friendly overall and improve the efficient enforcement of rights. The provisions to strengthen collective redress are not part of the current revision. As these were very controversial during the consultation process, the corresponding bill was split off and still remains to be debated in Parliament.

Outlook

The revision of the Code of Civil Procedure facilitates access to justice, notably by halving the advance on costs and transferring the risk of debt collection to the state. The strengthened role of the commercial courts and the possibility of conducting proceedings in English emphasise Switzerland as the preferred place of jurisdiction for international disputes. The fact that it is possible to participate in a court hearing via video conference further contributes to the modernisation of civil proceedings. Overall, the revision leads to a modern, practical and internationally competitive procedural law.