III.Institutions and Procedure
The institutions and procedure of Swiss civil justice can be best understood by chronologically following the course of a standard case. First, the attempt at conciliation, which is essentially mandatory before a case can be brought before a court, will be explained (1.). Subsequently, the rules for ordinary proceedings will be examined in detail (2.) following which a short overview of simplified and summary proceedings will be given (3.). Finally, the appellate remedies in Swiss civil procedure will be outlined (4.).
1.ATTEMPT AT CONCILIATION
As explained above, an attempt at conciliation is basically mandatory in Switzerland before a case can be brought to court (Article 197), although the law does provide for some exceptions (such as in summary proceedings). For financial disputes with a value in dispute of more than CHF 100’000, parties can agree to waive the conciliation attempt (Article 199 I). Like with cantonal courts, the federal law regulates the procedure before conciliation authorities but leaves their organisation to the cantons. The conciliation proceedings are initiated by the claimant filing an application for conciliation in the form of paper documents, either electronically (Article 130 I) or orally before the conciliation authority (Article 202 I). In their application, they must identify the opposing party, describe the prayers for relief and the matter in dispute. This is the minimum content required for a conciliation application (Article 202 II). With the filing of the application, a case becomes pending (Article 62): from this point, the same subject matter can no longer be filed elsewhere between the same parties (Article 64).
Conciliation authorities try to help the parties reach an agreement. The procedure is thus less formal than that followed in court proceedings. Conciliation hearings are also generally not open to the public. After the application is filed, the conciliation authority serves the defendant and summons the parties to a hearing. The parties must appear in person. The statements made during the hearing are confidential and cannot be used subsequently in any court proceedings (Article 205). In financial disputes where the value in dispute is below CHF 2’000, the conciliation authority can decide on the merits on the plaintiffs’ request (Article 212). If the value in dispute is below CHF 5’000, the conciliation authority can submit a proposed judgement to the parties, which has binding effect as long as it is not rejected by any of the parties within 20 days (Article 211). If the parties do not reach an agreement during the hearing and the conciliation authority can neither decide the case nor render a proposed judgement, it grants authorisation to proceed (Article 209 I). From this point, the claimant has three months to file the action in court if he or she wishes.
Court proceedings are initiated by the claimant filing a detailed statement of claim (Article 221). If the value in dispute exceeds CHF 30’000, the ordinary proceeding applies. Provisions regulating ordinary proceedings apply to other proceedings unless there are specialised rules stipulated by law. After the statement of claim is received by the court, the preparation of the main hearing begins. The court examines whether the procedural requirements (such as the proper filing of the statement of claim, a legitimate interest of the plaintiff, the case not being the subject of pending proceedings elsewhere, and the subject-matter and territorial jurisdiction of the court seized) are met (Article 60), serves the statement of claim on the defendant, and sets a deadline for the submission of a written statement of defence (Article 222). If the defendant does not submit within the deadline (including a short period of grace), the court can if feasible make a decision solely from the statement of claim (Article 223 II).
After the statement of defence is received, the court has several choices regarding the next procedural steps to be taken. It can proceed directly to the main hearing, order that an instruction hearing be held before proceeding to the main hearing, or order that a second written exchange be conducted before the main hearing. An instruction hearing can be held at any time during the proceedings to discuss the dispute informally, complete the facts, reach an agreement, or simply prepare for the main hearing (Article 226). Courts can also take evidence during such hearings. Prior to the main hearing, the court delivers the so-called ruling on evidence (Article 154): here the court rules on the admissibility of each piece of evidence and determines which party has the burden of proof for each fact.
Figure 4: Possible Options for the Conduct of Ordinary Proceedings
In Swiss civil procedure, the main hearing is structured in a fairly formal way. First, there are two rounds of oral statements taken from each party (Article 228). After the second round of written or oral statements, new facts and evidence are admissible only if they are introduced immediately and came into existence after the statements or, where they existed prior to this point, if the party was unable to introduce them earlier despite exercising reasonable diligence (Article 229). If the court decides to proceed directly to the main hearing after the statements of action and defence, parties can introduce new facts and evidence in their first oral statement. If the court decided to hold an instruction hearing for reasons other than simply reaching agreement, parties are generally not permitted to introduce any new facts or evidence in the main hearing (except if they arose after the instruction hearing or if they existed before but the party was unable to introduce them earlier despite exercising reasonable diligence). Instead, the parties can only comment on the statements that the other party made during the instruction hearing. The same goes for cases in which the court ordered a second round of written exchanges between the parties: here, the parties can only comment on the statements made by the other party in the last written exchange. So in conclusion, in Swiss civil procedure parties have two opportunities to bring new facts or evidence into the proceedings without limitation: First the statements of action and defence and second depending on the further course of the procedure either the second round of written exchanges, the statements during the instruction hearing, or the first oral statements during the main hearing.
The second oral statement in the main hearing provides the parties with an opportunity to comment on the other party’s first statement. This is especially important in cases where new facts or evidence have been introduced. Thereupon, the court examines the evidence produced by the parties and indicated in the ruling on evidence (questioning witnesses, performing an inspection, etc.). Afterwards, the parties may comment on the result of the evidence and on the merits of the case (Article 232). Each party has the right to make a second round of submissions. Parties can jointly agree to dispense with the main hearing (Article 233). In such cases, no evidence is taken as this is exclusively done as part of the main hearing.
If the court is able to make a decision, it closes the proceedings either by deciding not to consider the merits or by making a decision on the merits (Article 236). If the proceedings are not presided over by a single judge, the court decides by majority. The court may give notice of the decision to the parties without providing a written statement of the grounds, although the parties can request that such a statement be produced within ten days (Article 239).
3.OTHER TYPES OF PROCEEDINGS
Simplified proceedings are governed by Articles 243–247. They apply in cases where the value in dispute is below CHF 30’000, as well as to disputes in social matters, such as tenancy disputes, employment disputes, and consumer disputes. Simplified proceedings are less formal, largely allow oral submissions, and attribute a more active role to the court. Contrary to ordinary proceedings, in simplified proceedings a claimant may submit his claim orally before the court.
The Civil Procedure Code provides for summary proceedings in Articles 248–270. These procedures are even simpler and more expedient than simplified proceedings. They apply, in particular, to urgent requests and requests for provisional measures. They also apply to non-contentious matters, matters where the facts can be immediately proven, or matters where the legal situation is straightforward and indisputable. Summary proceedings also apply to specific proceedings under the Debt Enforcement and Insolvency Act, such as a declaration of bankruptcy. As in simplified proceedings, a claimant may present his or her claim orally. In the context of summary proceedings, the only permitted form of evidence is documents. Other types of evidence are only admissible if the taking of such evidence does not delay the proceedings or if the court has to establish facts ex officio.
As mentioned above each canton has a second-instance, appellate court. The Civil Procedure Code knows three appellate remedies: appeal, complaint, and revision. Subsequent complaints against final cantonal decisions can, in limited circumstances, be filed with the Swiss Federal Supreme Court. Such complaints are governed by the Federal Supreme Court Act (Articles 72 et seqq. Federal Supreme Court Act).
An appeal (Articles 308–318) is the ordinary remedy against final and interim decisions of first instance if the value in dispute amounts to at least CHF 10’000. Decisions in non-financial matters can practically always be challenged by appeal (for example, divorce cases). An appeal must be filed in writing within 30 days of service of a decision (Article 311 I). If the decision was rendered in summary proceedings, the deadline for filing the appeal is 10 days (Article 314 I). An appeal may be filed on grounds of the incorrect application of law (such as incorrect application of the Civil Procedure Code itself or incorrect application of substantial civil law) or the incorrect establishment of facts (such as incorrect assessment of evidence, incorrect assumption about whether facts have been claimed or not claimed).
Where an appeal is excluded, i.e. in financial cases with a value in dispute below CHF 10’000, a party may file an objection (Articles 319–327a). Objections are admissible on the grounds of the incorrect application of the law, but incorrect establishment of facts may be raised as a ground only if the establishment of facts has been obviously incorrect (Article 320). This is for instance presumed if the court determines facts based on an arbitrary assessment of evidence or if it assumes a fact that needs to be proven as proved without any records giving information on this fact. The deadline for filing an objection is 30 days from service of a court’s decision (Article 321 I). In the case of summary proceedings, it is 10 days (Article 321 II). Contrary to an appeal, the filing of an objection does not, as a rule, suspend the legal effect and enforceability of the contested decision (Article 325 I). However, exceptionally, the appellate court may grant a suspension of the enforceability (Article 325 II). As opposed to appeals, new evidence, or new allegations of facts are, in principle, inadmissible (Article 326).
Finally, a party can apply to the court that has decided as final instance in its case to reopen proceedings through a review (Articles 328–333) leading to a final judgment if significant facts or decisive evidence are discovered which were not available in the earlier proceedings (Article 328 I lit. a). Review of a decision may also be requested when the decision was unlawfully influenced to the detriment of a party (Article 328 I lit. b). Offences in this context are for instance perjury by a party to civil proceedings (Article 308 Criminal Code), perjury by an expert witness or false translation (Article 307 Criminal Code), issuing a false medical certificate (Article 318 Criminal Code), or bribery of Swiss public officials (Article 322ter Criminal Code). A review must be filed within 90 days of the discovery of the grounds for review (Article 329 I) and within 10 years of the date the decision came into force (Article 329 II). Like with objections, the filing of a review does not suspend the legal effect and enforceability of the decision (Article 332).
27In disputes relating to the tenancy and lease of residential and business property the conciliation authority may allow full or partial public access to the hearings if there is a public interest.
28If the statement of defence is not filed within the deadline, the law orders the court to allow the defendant a short period of grace.
29In ordinary proceedings, the courts usually exercise their duty to enquire during the instruction hearing, giving the parties the opportunity to clarify, or complete their submissions by asking appropriate questions.