Swiss civil procedure

The Swiss Civil Procedure Code (CPC, RS 272), which entered into force on 1 January 2011, unified civil procedure across the entire Swiss territory for the first time. Prior to that date, each canton had its own procedural rules, resulting in considerable heterogeneity. The CPC establishes a uniform framework applicable before all cantonal civil courts, from prior conciliation through to the enforcement of decisions.

Scope of application of the CPC

The CPC applies to contentious civil proceedings and non-contentious civil jurisdiction before cantonal courts (art. 1 CPC). It governs in particular:

• Private law disputes between individuals or between companies
• Proceedings relating to family law (divorce, parental authority, maintenance)
• Disputes in the fields of the law of obligations, contract law and civil liability
• Disputes relating to tenancy law, employment law and consumer protection law
• Interim and emergency measures in civil matters

Excluded from the scope of the CPC are proceedings governed by public law, criminal law, debt enforcement and bankruptcy (governed by the DEBA), and proceedings before the Federal Supreme Court (governed by the SCA).

Prior conciliation (art. 197–212 CPC)

Principle: a mandatory step

Art. 197 CPC lays down the principle of mandatory prior conciliation: before seising the court, the claimant must attempt to reach an agreement with the opposing party before the conciliation authority. The conciliation request interrupts the limitation period (art. 209 para. 3 CPC) and constitutes a formal condition for the admissibility of the future claim.

Exceptions to conciliation (art. 198 CPC)

The law provides for several situations in which prior conciliation is not required:

• Proceedings for divorce and legal separation
• Actions falling under commercial court jurisdiction in cantons that have established it
• Proceedings for lifting opposition and for a declaration of nullity of a payment order
• Interim measures and other urgent summary proceedings
• Counterclaims
• Proceedings for which exclusive jurisdiction lies with the court for matrimonial protection measures
• Actions relating to domestic violence (art. 28b CC)

The conciliation authority

The conciliation authority is a cantonal body, generally composed of a justice of the peace or a conciliation judge (art. 199 et seq. CPC). It is not empowered to decide the merits of the dispute but may propose an amicable settlement. In some cantons, specialised conciliation authorities exist for tenancy (rental conciliation commission) or employment disputes.

Outcome of the conciliation attempt

At the end of the conciliation hearing, several outcomes are possible:

• Agreement: the parties reach an amicable settlement, recorded in minutes having the force of an enforceable title (art. 208 CPC)
• Judgment proposal: the authority may submit a judgment proposal which each party may refuse within twenty days (art. 210 CPC)
• Decision: in disputes worth less than CHF 2'000, the authority may render a decision if the parties so request (art. 212 CPC)
• Leave to proceed: if conciliation fails, the authority issues a leave to proceed valid for three months (art. 209 CPC), enabling the claimant to seise the court

Types of procedure

The CPC distinguishes three main procedures, determined by the amount in dispute and the nature of the case:

Remedies (art. 308–334 CPC)

The CPC establishes a system of ordinary and extraordinary remedies enabling judicial decisions to be challenged:

Appeal (art. 308–318 CPC)

Appeal is the ordinary remedy against final and interlocutory decisions rendered in ordinary or simplified proceedings, where the amount in dispute at the last state of the submissions is at least CHF 10'000 (art. 308 para. 2 CPC). It allows both questions of fact and questions of law to be challenged. The appeal period is thirty days from notification of the reasoned decision (art. 311 para. 1 CPC). The appellate court may confirm, modify or set aside the contested decision.

Complaint (art. 319–327 CPC)

The complaint lies against interlocutory and final decisions of first instance that cannot be challenged by way of appeal, against decisions rendered in summary proceedings and against decisions on legal aid (art. 319 CPC). The time limit for a complaint is thirty days (art. 321 para. 2 CPC). The complaint is in principle limited to violations of law and manifestly incorrect findings of fact.

Revision (art. 328–333 CPC)

Revision is an extraordinary remedy that allows for a review of a decision that has become final where new and important facts or evidence are discovered after the event, or where serious irregularities tainted the proceedings (art. 328 CPC). The application for revision must be filed within ninety days of discovery of the ground for revision.

Interim measures (art. 261–269 CPC)

Interim measures allow a party to obtain swift provisional protection from the court while awaiting the outcome of proceedings on the merits. They are granted where the applicant demonstrates that a right to which they are entitled is being infringed or is at risk, and that such infringement is likely to cause them damage that is difficult to remedy (art. 261 para. 1 CPC).

The court may in particular:

• Prohibit an imminent infringement (prohibition order)
• Put an end to an existing infringement (cessation order)
• Order a performance in kind on a provisional basis
• Order the sequestration of assets
• Order a precautionary attachment

In cases of extreme urgency, the court may order interim measures immediately, without hearing the opposing party (super-provisional measures, art. 265 CPC). The applicant may be required to provide security (art. 264 CPC).

Taking of evidence — means of proof (art. 168 CPC)

The CPC exhaustively defines the admissible means of proof in civil proceedings (art. 168 para. 1 CPC):

• Testimony: statement by a third natural person on facts they directly perceived (art. 169-176 CPC)
• Documents: written documents, audio or visual recordings, computer files (art. 177-182 CPC)
• Inspection: direct examination of a place, object or person by the court (art. 183 CPC)
• Expert opinion: opinion of an expert appointed by the court where specialised knowledge is required (art. 183-188 CPC)
• Examination of the parties: statements by the parties themselves on the disputed facts (art. 191-193 CPC)
• Written information: information gathered by the court from authorities or third parties

In ordinary proceedings, the court freely assesses the evidence (art. 157 CPC). The ordinary standard of proof is certainty (high probability), whereas interim measures require only plausibility.

Costs and party costs (art. 95–123 CPC)

The allocation of costs is governed by art. 95 to 123 CPC:

Court fees

Court fees include court charges (calculated according to a cantonal tariff based on the amount in dispute and the complexity of the case), costs of taking evidence (expert fees, inspection costs) and communication costs. As a general rule, court fees are charged to the losing party (art. 106 para. 1 CPC). The court may allocate costs differently in the event of partial success.

Advance on costs

Upon filing of the claim, the court requires the claimant to pay an advance on costs covering the estimated court fees (art. 98 CPC). If the advance is not paid within the time limit, the claim is declared inadmissible.

Party costs

Party costs include legal fees, reimbursed according to a cantonal tariff or by agreement, as well as necessary disbursements. The successful party may claim reimbursement of its party costs from the opposing party (art. 95 para. 3 CPC).

Legal aid (art. 117–123 CPC)

Any person who lacks sufficient resources and whose case is not devoid of any prospect of success may apply for legal aid (art. 117 CPC). Legal aid includes exemption from advances on costs and security (art. 118 para. 1 let. a CPC) and, where the complexity of the case so warrants, the appointment of an officially assigned lawyer whose fees are borne by the State (art. 118 para. 1 let. c CPC). The application is made to the competent court and must be accompanied by a statement of means.

Enforcement of decisions (art. 335–352 CPC)

The CPC governs the enforcement of cantonal civil decisions (art. 335 et seq. CPC), to be distinguished from the forced enforcement of monetary claims governed by the Federal Act on Debt Enforcement and Bankruptcy (DEBA). Enforcement within the meaning of the CPC primarily concerns obligations to act, to refrain from acting or to tolerate.

The enforcement court may order the following measures (art. 343 CPC):

• The threat of the penalty provided for in art. 292 SCC (disobedience to an authority's decision) in the event of non-compliance
• A disciplinary fine of up to CHF 5'000
• A periodic penalty payment per day of delay
• Enforcement by substitution at the expense of the defaulting party
• As a last resort, direct coercive measures

Typical stages of civil proceedings in the ordinary procedure

Frequently asked questions about Swiss civil procedure