The course of a court process and the rights of those involved are regulated in the procedural rules. The provisions on civil procedure are set out in the Federal Code of Civil Procedure . This law, the ZPO, regulates the procedure for enforcing civil law claims - these include, for example, monetary claims or other contract disputes, family law lawsuits or the protection of personality. Anyone who wants to enforce a claim in court is required to strictly adhere to these rules, otherwise there is a risk of losing a claim (which is justified in itself). In this respect, the Code of Civil Procedure is of considerable importance in everyday legal life. Formal errors often lead to the dismissal (or approval) of a lawsuit.
Until 2010, each canton had its own rules, some of which differed significantly from one another. With the entry into force of the Federal Code of Civil Procedure, the cantonal regulations were replaced and civil procedural law was standardized across Switzerland. A revised version of the ZPO came into force on January 1, 2025. According to the Federal Council, the new rules are intended to make access to court easier and further improve legal enforcement.
In this article we will inform you about the most important innovations that affect legal seekers.
- Lower cost advances : Anyone who files a lawsuit with the court usually has to pay an advance cost that covers the presumed court costs. These rules in the (old) ZPO meant that the plaintiff had to bear the risk of litigation for the time being and it was only in the final decision that it was decided which party would be awarded the court costs. This regulation has repeatedly been the cause of criticism and has made it particularly difficult for people with average incomes to access the court, as they were unable to benefit from free litigation due to their financial circumstances. The revised ZPO establishes the principle that the plaintiff can be required to pay an advance on costs of “no more than half of the presumed court costs” (Art. 98 ZPO). Exceptions regarding special procedures remain reserved. Incidentally, in the consultation, various cantons defended themselves against the new cost regulations and pointed out that the charging of an advance on costs had already been designed as an “optional provision” and that the courts were therefore entitled to waive an advance on costs. However, this argument does not take into account the fact that this option was hardly ever used and that the legislative exception provision effectively remained a dead letter in legal practice.
- Adjustment of the costs regulation : With the previous costs regulation, the successful party in the lawsuit was often disadvantaged because advances on costs they had made were not reimbursed by the court. If the plaintiff was successful in the lawsuit, it had to collect the costs (previously advanced) from the opposing party. If they were not solvent or unwilling to pay, the plaintiff was often stuck with the costs. The revised ZPO now stipulates that advances on costs made by the successful plaintiff party must be reimbursed (Art. 111 ZPO). The state now bears the relevant debt collection risk 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 requested directly from the counterparty.
- Expansion of the arbitration procedure : The Code of Civil Procedure in its original form already provided for a so-called obligation to arbitrate in accordance with the principle of “arbitrate instead of judge”. Before regular legal proceedings are initiated, there is a mediation hearing (sometimes also called atonement or justice of the peace hearing), the aim of which is to persuade the parties to reach a settlement. According to the Federal Council, depending on the canton, fifty to eighty percent of disputes can be settled in this way before regular court proceedings even take place. An exception to this obligation to arbitrate previously existed in cases that were adjudicated by a single cantonal authority, such as competition and trademark disputes or where the commercial court has jurisdiction. In the revised Code of Civil Procedure, the legislature is making a paradigm shift by providing for a prior arbitration procedure in such cases, but at the same time granting the plaintiff the right to forego arbitration and file a lawsuit directly with the court (Art. 199 Para. 3 ZPO) . The arbitration authorities now have the right to issue a so-called proposed judgment in cases with a value in dispute of up to 10,000 francs - previously the limit was 5,000 francs. If the parties do not reject the court's proposed judgment within 20 days, it becomes a judgment.
- Internationalization of procedural law: The revised Code of Civil Procedure gives the cantons the opportunity to declare their cantonal commercial courts responsible in international commercial disputes, which primarily benefits foreign parties who were previously unable to get to the commercial court if they were not registered in the local commercial register (Art 6 Paragraph 4 Letter c ZPO). Although jurisdiction only exists if certain conditions are met - for example, the amount in dispute must be at least 100,000 francs and the parties must expressly agree to jurisdiction - the legislature hopes that the adjustment will strengthen the business location. The possibility of conducting proceedings in English with the consent of all parties should also contribute to this, provided that the respective canton provides for this possibility (Art. 129 Para. 2 lit. b ZPO). It can be assumed that the internationally important business locations of Zurich and Geneva in particular will make use of this competence.
- Obligation to forward to court : A very controversial change, especially among the courts, concerns the newly introduced obligation of the courts to forward petitions that were erroneously submitted to the wrong court to the responsible judicial authority (Art. 143 Para. 1 bis ZPO).
- Digital processes: What was already partly practiced during the Corona pandemic is now also provided for in the revised ZPO: the hybrid or completely electronic conduct of court hearings. The court can carry out oral proceedings “using electronic means of sound and image transmission” – this includes, in particular, video conferences – unless the law provides otherwise and all parties agree to this (Art. 141a ZPO). In practice, practical and legal questions are likely to arise, particularly if an electronic process cannot be carried out as planned. According to the logic of the Code of Civil Procedure, if a party does not carry out a procedural act, it is considered to be in default, which could be disadvantageous in a judgment. It remains to be seen how the courts will deal with situations in which the procedural action cannot be carried out for (supposedly) technical reasons.
The new provisions will apply from January 1, 2025. If you have any questions about litigation in general or the new provisions of civil procedure law in particular, the experts at Wagner Prazeller Hug will be happy to help you.
