The course of a court process and the rights of the parties are regulated in the procedural orders. The provisions for civil proceedings are recorded in the Swiss Civil Procedure Code . This law, the CPC, regulates the procedure for enforcing civil law claims – for example monetary claims or other contractual disputes, family law actions or the protection of personality. Anyone who wishes to enforce a claim in court must strictly adhere to these rules, otherwise the loss of a (legitimately justified) claim may be threatened. Accordingly, the Civil Procedure Code has considerable significance in everyday legal practice. Formal errors often lead to the dismissal (or granting) of a lawsuit. Eidgenössischen Zivilprozessordnung festgehalten. Dieses Gesetz, die ZPO, reguliert das Verfahren zur Durchsetzung von zivilrechtlichen Ansprüchen – dazu gehören zum Beispiel Geldforderung oder andere Vertragsstreitigkeiten, familienrechtliche Klagen oder der Schutz der Persönlichkeit. Wer einen Anspruch gerichtlich durchsetzen möchte, ist gehalten, sich streng an diese Regeln zu halten, ansonsten der Verlust einer (an sich gerechtfertigten) Forderung drohen kann. Insofern kommt der Zivilprozessordnung eine erhebliche Bedeutung im Rechtsalltag zu. Formelle Fehler führen nicht selten zur Abweisung (oder zur Gutheissung) einer Klage.
Until 2010, each canton had its own rules, which differed significantly from each other in some respects. With the entry into force of the Federal Civil Procedure Code (ZPO), the cantonal provisions were abolished and civil procedural law was standardized nationwide. On 1 January 2025, a revised version of the ZPO entered into force. With the new rules, according to statements of the Federal Council the access to the courts is facilitated and the enforcement of rights further improved.
In this article, we inform you about the most important innovations that affect those seeking legal redress.
- Deeper cost advances: Anyone who files a lawsuit with the court is generally required to pay a cost advance that covers the estimated court fees. These rules in the (old) Code of Civil Procedure resulted in the plaintiff initially having to bear the procedural risk, and only in the final decision was it determined which party would be charged the court costs. This regulation was repeatedly criticized and especially hindered individuals with average incomes from accessing the courts, as their financial circumstances prevented them from benefiting from a cost‑free litigation. The revised Code of Civil Procedure establishes the principle that a cost advance of «no more than half of the estimated court fees» may be demanded from the plaintiff (Art. 98 ZPO). Exceptions concerning special procedures remain reserved. In the consultation, various cantons, by the way, opposed the new cost regulations and pointed out that the collection of a cost advance had previously been designed as a «mandatory‑if‑applicable» provision, and the courts were consequently entitled to waive a cost advance. However, this argument disregards the fact that this option was rarely utilized, and the legislative exemption provision has effectively remained a dead letter in practice.
- Adjustment of the cost regulation: With the previous cost regulation, the prevailing plaintiff was often disadvantaged, because cost advances paid by them were not reimbursed by the court. If the plaintiff was successful in the process, they had to recover the (previously advanced) costs from the opposing party. If this party was not solvent or unwilling to pay, the plaintiff side often remained bearing the costs. The revised ZPO now provides that cost advances made by the prevailing plaintiff are to be refunded (Art. 111 ZPO). The related collection risk is now borne by the state instead of the plaintiff. However, this does not apply to party compensation, i.e., costs for legal representation, which must be borne by the losing party. These must still be claimed directly from the opposing party
- Expansion of the Conciliation Procedure: The Code of Civil Procedure already provided in its ursprünglichen form according to the principle «conciliate rather than adjudicate» a so‑called conciliation obligation. Prior to the initiation of an ordinary court proceeding, a conciliation hearing takes place (partly also called Sühne or peace‑judge hearing), whose aim is to bring the parties to a settlement. According to statements of the Federal Council, this can resolve, depending on the canton, fifty to eighty percent of disputes before an ordinary court proceeding even begins. An exception to this conciliation obligation previously existed in cases that were judged by a single cantonal instance, such as competition and trademark disputes or matters under the jurisdiction of the Commercial Court. In the revised Code of Civil Procedure, the legislature makes a paradigm shift by also providing a preliminary conciliation procedure in such cases, while simultaneously granting the plaintiff the right to waive conciliation and file a lawsuit directly with the court (Art. 199 Abs. 3 ZPO). New to the conciliation authorities is the right to issue a so‑called judgment proposal in cases with a dispute value of up to 10’000 Swiss francs – previously the limit was 5’000 francs. If the parties do not reject the court’s judgment proposal within 20 days, it becomes a judgment.
- Internationalisation of procedural law: The revised Code of Civil Procedure grants the cantons the possibility to declare their cantonal commercial courts competent in international commercial disputes, which primarily benefits foreign parties that have previously been unable to reach the commercial court unless they were registered in the local commercial register (Art. 6 para. 4 lit. c ZPO). Although jurisdiction is only granted when certain conditions are met – for example, the dispute value must be at least 100’000 francs and the parties must explicitly agree to the jurisdiction – the legislature hopes that the amendment will strengthen the business location. The possibility to conduct proceedings anew with the consent of all parties in English, provided the respective canton allows this possibility (Art. 129 para. 2 lit. b ZPO), is also intended to contribute. It is assumed that especially the internationally important business locations Zurich and Geneva will make use of this competence.
- Judicial Referral Obligation: A change, especially controversial among the courts, concerns the newly introduced duty of the courts to forward submissions mistakenly filed with the wrong court to the competent judicial authority (Art. 143 para. 1to ZPO).
- Digital Processes: What während the Corona pandemic was partially already practiced, is now also provided for in the revised ZPO: the hybrid or vollstündig electronic Durchführung of court hearings. Thus the court can conduct mündliche procedural actions «by means of electronic means for audio and video transmission» – including in particular video conferences – durchführen, provided the law does not stipulate otherwise and sämtliche parties agree (Art. 141a ZPO). In practice dürfen practical and legal questions arise especially then, if an electronic procedural action cannot be carried out as planned. If a procedural action is not taken by a party, it is considered säumig according to the logic of the ZPO, which could be detrimental to them in a judgment. It remains to be seen how the courts will handle situations where the procedural action cannot be taken due to (alleged) technical Gründen.
The new regulations are in effect as of January 1, 2025. If you have any questions regarding legal proceedings in general or the new provisions of the Code of Civil Procedure in particular, the experts at Wagner Prazeller Hug are at your disposal.
