Litigation in civil procedure law

• Litigation/Mediation
• Private Clients
• SME

Civil procedural law defines the procedures that enable parties (between private individuals) to enforce their rights. In this blog post, we provide an overview of key aspects of litigation in civil procedural law.

Principles of civil procedural law

Civil procedural law is governed by the Swiss Civil Procedure Code (CPC), which has been in force since 1 January 2011. It standardises civil procedural law throughout Switzerland, which was previously characterised by cantonal regulations. The CPC sets out the rules for initiating proceedings, the course of the proceedings and legal remedies.

The legal process: from conciliation/mediation to legal action

Before civil proceedings are initiated, the ZPO provides for mandatory conciliation proceedings in most cases; if all parties agree, mediation can take the place of conciliation proceedings.

The aim of the conciliation procedure is to persuade the parties to reach an amicable agreement in order to avoid a trial, which can be costly depending on the circumstances. This procedure usually takes place before an arbitration authority, which may be organised differently depending on the canton. If no agreement can be reached, the plaintiff receives permission to file a lawsuit within a specified period (the so-called authorisation to file a lawsuit).

The action is filed with the competent court. Jurisdiction depends in particular on the amount in dispute and the domicile or place of residence of the parties. The proceedings begin with the submission of a statement of claim, which sets out the facts of the case, lists the evidence and formulates the specific legal claims. The other party is given the opportunity to comment and submit a defence.

Course of proceedings

Civil proceedings are usually divided into several phases:

Written proceedings:

This is where the statement of claim and defence are exchanged and, if necessary, further written pleadings such as a reply and rejoinder are submitted as part of a second exchange of written pleadings.

Instruction hearing:

This phase serves to prepare for the main hearing. In particular, the court can order further evidence and encourage the parties to engage in settlement discussions. The court can also recommend mediation to the parties at any time.

Main hearing:

In this hearing, the arguments of the parties are presented, evidence is examined and any witnesses are questioned. The court draws on all relevant information in order to reach a decision.

Judgement pronouncement:

At the end of the hearing, the court makes a decision. This decision can either be announced orally immediately or delivered in writing at a later date.

Appeal:

If certain conditions are met, the parties can appeal against this decision either to the court that made the decision (revision) or to a higher court (appeal, complaint). The highest court in Switzerland for civil proceedings is the Federal Supreme Court.

Costs and litigation risks

Litigation involves court costs, lawyers’ fees and possible compensation for the other party. In civil procedure law, the principle applies that the unsuccessful party bears the costs of the proceedings (court costs and lawyers’ fees). However, there is the possibility of legal aid if a party can prove that they do not have sufficient financial resources and the case does not seem devoid of any chances of success.

Conclusion

Civil procedural law provides a structured and regulated framework for the enforcement of civil law claims. The procedures are designed to find a fair and lawful solution for the disputing parties, be it through an amicable settlement or a court judgement. Nevertheless, litigation is associated with risks and costs that must be carefully weighed up.