272
Swiss Civil Procedure Code
(Civil Procedure Code, CPC)
of 19 December 2008 (Last amended on 1 July 2026)
Preamble
The Federal Assembly of the Swiss Confederation,
based on Article 122 paragraph 1 of the Federal Constitution1,
and having considered the Federal Council Dispatch of 28 June 20062,
decrees:
Part 1 General Provisions
Title 1 Subject Matter and Scope of Application
Art. 1 Subject matter
This Code governs the proceedings before the cantonal authorities for:
contentious civil matters;
court orders in non-contentious matters;
court orders in matters of debt enforcement and bankruptcy law;
arbitration.
Art. 2 International matters
The provisions of international treaties and of the Federal Act of 18 December 19873 on Private International Law (PILA) are reserved.
Art. 3 Organisation of the courts and the conciliation authorities
The organisation of the courts and the conciliation authorities is in the competence of the cantons, unless the law provides otherwise.
Title 2 Jurisdiction of the Courts and Recusal
Chapter 1 Material Jurisdiction and Functional Jurisdiction
Art. 4 Principles
Cantonal law governs the material jurisdiction and functional jurisdiction of the courts, unless the law provides otherwise.
If the material jurisdiction depends on the value in dispute, such value is calculated according to this Code.
Art. 5 Court of sole cantonal instance
The cantonal law designates the court that has jurisdiction as sole cantonal instance for:
disputes in connection with intellectual property rights, including disputes concerning the nullity, ownership, licensing, transfer and violation of such rights;
cartel law disputes;
disputes on the use of a business name;
disputes under the Unfair Competition Act of 19 December 19864 if the value in dispute exceeds 30,000 francs or if the Confederation exercises its right to file an action;
5disputes under the Nuclear Energy Public Liability Act of 13 June 20086;
7actions against the Confederation, provided the value in dispute exceeds CHF 30,000;
claims against the Confederation;
8disputes relating to the instigation and conduct of a special investigation in accordance with Articles 697c–697hbis of the Code of Obligations (CO)9;
10disputes under the Collective Investment Schemes Act of 23 June 200611, the Financial Market Infrastructure Act of 19 June 201512 and the Financial Institutions Act of 15 June 201813;
14disputes under the Coat of Arms Protection Act of 21 June 201315, the Federal Act of 25 March 195416 on the Protection of the Emblem and Name of the Red Cross and the Federal Act of 15 December 196117 on the Protection of the Names and Emblems of the United Nations Organization and other Intergovernmental Organisations.
This court is also competent to order interim measures before an action is pending.
Art. 6 Commercial court
The cantons may designate a special court that has jurisdiction as sole cantonal instance for commercial disputes (commercial court).
A dispute is considered commercial, if:
it concerns the commercial activity of at least one party;
18the value in dispute exceeds CHF 30,000 or the dispute is not a property dispute;
19the parties are registered as legal entities in the Swiss Commercial Register or in an equivalent foreign register; and
20it is not a dispute arising from a employment relationship, under the Recruitment Act of 6 October 198921, under the Gender Equality Act of 24 March 199522, or relating to the renting or leasing of residential and commercial premises or to agricultural leases.
If only the defendant is registered as a legal entity in the Swiss Commercial Register or in an equivalent foreign register, but all the other conditions are met, the plaintiff may choose between the commercial court and the ordinary court.23
The cantons may also assign to the commercial court:
the disputes mentioned in Article 5 paragraph 1;
the disputes relating to the law of commercial companies and cooperatives;
24disputes in which all the following conditions are met:
The dispute concerns the business activities of at least one party.
The value in dispute is at least CHF 100,000.
The parties agree to the jurisdiction of the commercial court.
At the time of this agreement, at least one party has its domicile, habitual residence or registered office abroad.
The commercial court is also competent to order interim measures before an action is pending.
If actions concern joint parties that are not all registered as legal entities in the Swiss Commercial Register or in a comparable foreign register, the commercial court shall only have jurisdiction if all actions fall within its jurisdiction.25
Art. 7 Disputes concerning insurance supplementary to social health insurance
The cantons may designate a court that has jurisdiction as sole cantonal instance for disputes relating to insurance supplementary to social health insurance under the Federal Act of 18 March 199426 on Health Insurance.
Art. 8 Direct action before the higher court
If in a financial dispute the value in dispute is at least CHF 100,000, the plaintiff may, with the consent of the defendant, file its action directly before the higher court.
This court decides as the sole cantonal instance. It is also responsible for ordering interim measures before an action becomes pending.27
Chapter 2 Territorial Jurisdiction
Section 1 General Provisions
Art. 9 Mandatory jurisdiction
A place of jurisdiction is mandatory only if the law expressly so provides.
Parties may not derogate from a mandatory place of jurisdiction.
Art. 10 Domicile and registered office
Unless this Code provides otherwise, the following court has jurisdiction:
for actions against a natural person: the court at the person's domicile;
for actions against legal entities, public corporations and institutions as well as general partnerships and limited partnerships: the court at the location of their registered office;
28for actions against the Confederation: the court in the City of Bern or the court where the plaintiff's domicile, registered office or habitual residence is located;
for actions against the Confederation: the Supreme Court of the Canton of Bern or the supreme court of the canton where the plaintiff's domicile, registered office or habitual residence is located;
for actions against a canton: a court in the canton's capital.
Domicile is determined in accordance with the Civil Code (CC)29. Article 24 CC does not apply.
Art. 11 Residence
If the defendant has no domicile, the court at his or her habitual residence has jurisdiction.
A habitual residence is the place where a person lives for a certain period of time, even if that period is limited from the outset.
If the defendant has no habitual residence, the court at his or her last known place of residence has jurisdiction.
Art. 12 Establishment
For actions arising out of the commercial or professional activity of an establishment or branch, the court at the defendant's domicile or registered office or at the location of the establishment has jurisdiction.
Art. 13 Interim measures
Unless the law provides otherwise, the following court has mandatory jurisdiction to order interim measures:
the court that has jurisdiction to decide the main action; or
the court at the place where the measure is to be enforced.
Art. 14 Counterclaim
A counterclaim may be filed in the court that has jurisdiction over the main action, provided the counterclaim has a factual connection with the main action.
This place of jurisdiction subsists even if the main action is dismissed for whatever reason.
Art. 15 Joinder of parties and joinder of actions
If an action is directed against two or more defendants, the court that has jurisdiction with regard to one defendant has jurisdiction with regard to all defendants unless jurisdiction is based solely on an agreement on jurisdiction.
If two or more actions that are factual connected are raised against one and the same defendant, each court that has jurisdiction over any one of the actions has jurisdiction over all of them.
Art. 16 Third party action
The court that has jurisdiction to decide the main action also decides on the third-party action.
Art. 17 Agreement on jurisdiction
Unless the law provides otherwise, the parties may agree on which court has jurisdiction over an existing or future dispute arising from a particular legal relationship. Unless the agreement provides otherwise, the action may only be brought before agreed court.
The agreement must be in writing or in any other form allowing it to be evidenced by text.
Art. 18 Acceptance by appearance
Unless the law provides otherwise, the seised court has jurisdiction if the defendant enters an appearance on the merits without objecting to the court's jurisdiction.
Art. 19 Non-contentious matters
Unless the law provides otherwise, the court or authority at the domicile or registered office of the applicant has mandatory jurisdiction over non-contentious matters.
Section 2 Law of Persons
Art. 20 Protection of personal privacy and data protection
The court at the domicile or registered office of either of the parties has jurisdiction to decide on:
actions based on an invasion of the personal privacy;
requests for a right of reply;
actions for name protection and actions challenging a name change;
30actions and requests under the Data Protection Act of 25 September 202031 (FADP).
Art. 21 Declaration of death and declaration of presumed death
The court at the last known domicile of the missing person has mandatory jurisdiction over applications relating to a declaration of death or declaration of presumed death (Art. 34 to 38 CC32).
Art. 22 Modification of the civil register
For actions concerning the modification of the civil register, the court of the district in which the entry to be modified was made or should have been made has mandatory jurisdiction.
Section 3 Family Law
Art. 23 Applications and actions based on marital law
The court at the domicile of either of the parties has mandatory jurisdiction over applications and actions based on marital law as well as applications for interim measures.
The court at the domicile of the debtor has mandatory jurisdiction over applications for separation of property by the supervisory authority in debt enforcement and bankruptcy matters.
Art. 24 Applications and actions in registered partnership matters
The court at the domicile of one of the parties has mandatory jurisdiction over applications and actions in matters of registered partnerships as well as requests for interim measures.
Art. 25 Actions relating to parent-child relationships
The court at the domicile of one of the parties has mandatory jurisdiction over actions to declare or contest a parent-child relationship.
Art. 26 Actions for maintenance and assistance
The court at the domicile of either of the parties has mandatory jurisdiction over separate actions claiming maintenance brought by children against their parents or for actions against relatives with an obligation to provide assistance.
Art. 27 Claims of the unmarried mother
The court at the domicile of either of the parties has mandatory jurisdiction over the claims of the unmarried mother.
Section 4 Law of Succession
Art. 28
The court at the last domicile of the deceased has jurisdiction over actions under the law of succession as well as actions for the division of the marital property on the death of a spouse or a registered partner.
The authorities at the last domicile of the deceased have mandatory jurisdiction over measures in connection with succession. If death did not occur at the domicile, the authorities at the place of death shall notify the authorities at the place of domicile and take the necessary measures to ensure the conservation of the assets situated at the place of death.
Independent actions for the allocation on death of an agricultural enterprise or agricultural land may also be brought before the court at the place where the property is located.
Section 5 Property Law
Art. 29 Immovable property
The court at the place where a property is or should be recorded in the land register has jurisdiction to decide on:
actions in rem;
actions against the community of condominium owners;
actions for the registration of statutory charges on immovable property.
Other actions relating to immovable property rights may also be brought before the court at the domicile or registered office of the defendant.
If an action concerns multiple properties or if a property is recorded in the land register of several districts, the court where the largest property or the largest part of the property is situated has jurisdiction.
In non-contentious matters relating to immovable property rights, the court at the place where the property is or should be recorded in the land register has mandatory jurisdiction.
Art. 30 Chattels
For actions relating to rights in rem or possession of chattels or claims secured by charges on chattels, the court at the domicile or registered office of the defendant or at the place where the item is located has jurisdiction.
In non-contentious matters, the court at the domicile or registered office of the applicant or with the court at the place where the item is located has mandatory jurisdiction.
Section 6 Actions in Contract
Art. 31 Principle
The court at the domicile or registered office of the defendant or at the place where the characteristic performance must be rendered has jurisdiction over actions related to contracts.
Art. 32 Consumer contracts
The following court has jurisdiction in disputes concerning consumer contracts:
for actions brought by the consumer: the court at the domicile or registered office of one of the parties;
for actions brought by the supplier: the court at the domicile of the defendant.
Consumer contracts are contracts on supplies for ordinary consumption intended for the personal use of the consumer or his family and offered by the other party in the course of its professional or commercial activity.
Art. 33 Tenancy and lease of immovable property
The court at the place where the immovable property is situated has jurisdiction to decide actions based on a contract for the tenancy or lease of immovable property.
Art. 34 Employment Law
The court at the domicile or registered office of the defendant or where the employee normally carries out his or her work has jurisdiction to decide actions relating to employment law.
If a job applicant or an employee brings an action based on the Recruitment Act of 6 October 198933, the court at the place of the business establishment of the recruitment or hiring agent with whom the contract was concluded also has jurisdiction.
Art. 35 Waiver of statutory jurisdiction
The following persons may not waive the jurisdiction provided for in Articles 32 to 34, whether in by advance agreement or by entering appearance:
the consumer;
the tenant or lessee of a residential or business property;
the farmer in case of agricultural farm leases;
the person seeking employment or the employee.
The conclusion of an agreement on jurisdiction after the emergence of the dispute is reserved.
Section 7 Actions in Tort
Art. 36 Principle
The court at the domicile or registered office of the aggrieved person or the defendant, or where the act occurred or had its effect has jurisdiction over actions in tort.
Art. 37 Damages for unjustified interim measures
The court at the domicile or registered office of the defendant or at the place where the measures have been ordered has jurisdiction to decide actions for damages resulting from unjustified interim measures.
Art. 38 Motor vehicle and bicycle accidents
The court at the domicile or registered office of the defendant or at the place of the accident has jurisdiction to decide actions resulting from motor vehicle and bicycle accidents.
Actions against the Swiss National Bureau of Insurance (Art. 74 of the Road Traffic Act of 19 December 195834; RTA) or against the Swiss National Guarantee Fund (Art. 76 RTA) may also be brought before the court at the place of any branch of such institutions.
Art. 38a35 Nuclear damage
In the case of actions arising from nuclear incidents, the court in the canton where the incident took place has mandatory jurisdiction.
If there is any uncertainty as to which canton this is, the court in the canton where the nuclear installation of the liable proprietor is located has mandatory jurisdiction.
If two or more courts have jurisdiction in accordance with these rules, the court in the canton that is most closely linked to the incident and which is most seriously affected by it has mandatory jurisdiction.
Art. 39 Incidental civil claim
The competence of the criminal court to decide incidental civil actions is reserved.
Section 8 Commercial Law
Art. 40 Company law and the commercial register36
The court at the domicile or registered office of the defendant or the court at the registered office of the company has jurisdiction to decide actions concerning liability in company law.
The court at the last registered office of the deleted legal entity has mandatory jurisdiction over the reinstatement of a deleted legal entity in the commercial register.37
Art. 4138
Art. 42 Mergers, demergers, transformations, transfers of assets and liabilities
The court at the registered office of one of the involved entities has jurisdiction to decide actions relating to the Mergers Act of 3 October 200339.
Art. 43 Cancellation of securities and insurance policies, injunction against payment
The court at the registered office of the company has mandatory jurisdiction to declare the cancellation of shares.
The court at the place where the immovable property is recorded in the land register has mandatory jurisdiction to declare the cancellation of mortgage instruments.
The court at the domicile or registered office of the debtor has mandatory jurisdiction to declare the cancellation of other securities and insurance policies.
The court at the place of payment has mandatory jurisdiction to issue injunctions against payment under a bill of exchange or cheque and to declare their cancellation.
Art. 44 Bonds
The place of jurisdiction for the authorisation to convene a creditors' meeting is governed by Article 1165 CO40.
Art. 45 Collective investment schemes
The court at the registered office of the concerned licence holder has mandatory jurisdiction to decide on actions brought by the investors or the representative of the community of investors.
Section 9 Debt Enforcement and Bankruptcy Law
Art. 46
The place of jurisdiction for actions under the Federal Act of 11 April 188941 on Debt Enforcement and Bankruptcy (DEBA) is determined by this chapter unless the DEBA provides for a place of jurisdiction.
Chapter 3 Recusal
Art. 47 Grounds for recusal
Judges and judicial officers shall recuse themselves if:
they have a personal interest in the case;
they have acted in the same case in another capacity, in particular as member of an authority, legal agent, expert witness, witness or mediator;
they are or were married to, or live or lived in a registered partnership or co-habit with a party or his or her representative or a person who has acted in the same case as a member of the lower court;
they are related to a party by birth or marriage in direct line or in collateral line up to the third degree;
they are related by birth or marriage in direct line or in collateral line up to the second degree to the representative of a party or a person who has acted in the same case as a member of the lower court;
they may not be impartial for other reasons, notably due to friendship or enmity with a party or his or her representative.
Involvement in the following, in particular, is in itself no reason for recusal:
the decision on legal aid;
the conciliation proceedings;
the setting aside of an objection under Articles 80 to 84 DEBA42;
the ordering of interim measures;
proceedings for protection of the marital union.
Art. 48 Duty to provide information
The judge or judicial officer concerned shall make a timely disclosure of any possible reason for recusal and shall recuse him- or herself voluntarily if he or she considers that such reason exists.
Art. 49 Application for recusal
A party that wishes to challenge a judge or judicial officer must file the corresponding application as soon as it has become aware of the reason for recusal. It must show credibly the facts that justify the challenge.
The judge or judicial officer concerned shall respond to the application.
Art. 50 Decision
If the reason given for recusal is disputed, the court shall decide.
An objection may be filed against the decision.
Art. 51 Consequences of violating the regulations on recusal
Procedural acts in which a person obliged to recuse him- or herself has participated must be annulled and repeated if a party so requests within 10 days of becoming aware of the reason for recusal.
If the taking of evidence cannot be repeated, the relevant evidence may be taken into consideration by the deciding court.
If a reason for recusal is detected only after the close of the proceedings and if no other legal remedy is still available, the provisions on review apply.43
Title 3 Procedural Principles and Procedural Requirements
Chapter 1 Procedural Principles
Art. 52 Acting in good faith
All those who participate in proceedings must act in good faith.
Incorrect instructions on appellate remedies are effective in relation to all courts to the extent that they are advantageous to the party invoking them.44
Art. 53 Right to be heard
The parties have the right to be heard.
They have in particular the right to consult the case files and to obtain copies thereof provided this does not conflict with overriding public or private interests.
They may comment on all submissions made by the opposing party. The court shall set them a deadline of at least ten days to do so. If the deadline expires unused, it shall be assumed that the parties do not wish to comment.45
Art. 54 Publicity
Hearings and any oral passing of judgment shall be conducted in public. The decisions are made accessible to the public.
Cantonal law determines whether the deliberations are public.
Proceedings may be held completely or partially in camera when required by public interest or by the legitimate interests of a person involved.
Family law proceedings are not conducted in public.
Art. 55 Principles of production of evidence and of ex-officio investigation
The parties must present the court with the facts in support of their case and submit the related evidence.
Statutory provisions relating to the ex-officio establishment of facts and taking of evidence are reserved.
Art. 56 Court's duty to enquire
If a party's submissions are unclear, contradictory, ambiguous or manifestly incomplete, and the court shall give the party the opportunity to clarify or complete the submission by asking appropriate questions.
Art. 57 Ex-officio application of the law
The court applies the law ex-officio.
Art. 58 Principles of non ultra petita and ex-officio assessment
The court may not award a party anything more than or different from what the party has requested, nor less than what the opposing party has acknowledged.
The statutory provisions under which the court is not bound by the parties' requests are reserved.
Chapter 2 Procedural Requirements
Art. 59 Principle
The court shall consider an action or application provided the procedural requirements are satisfied.
Procedural requirements are in particular the following:
the plaintiff or applicant has a legitimate interest;
the court has subject matter and territorial jurisdiction;
the parties have the capacity to be a party and the capacity to take legal action;
the case is not the subject of pending proceedings elsewhere;
the case is not already the subject of a legally-binding decision;
the advance and security for costs have been paid.
Art. 60 Verification of compliance with the procedural requirements
The court shall examine ex-officio whether the procedural requirements are satisfied.
Art. 61 Arbitration agreement
If the parties have concluded an arbitration agreement relating to an arbitrable dispute, the seised court shall declines jurisdiction unless:
the defendant has made an appearance without reservation;
the court holds that the arbitration agreement is manifestly invalid or unenforceable; or
the arbitral tribunal cannot be constituted for reasons that are manifestly attributable to the defendant in the arbitration proceedings.
Title 4 Pendency and Effects of Withdrawal of the Action
Art. 62 Start of pendency
A case becomes pending when an application for conciliation, an action, an application, or a joint request for divorce is filed.
Confirmation of receipt of such submissions shall be issued to the parties.
Art. 63 Pendency where the court has no jurisdiction or the procedure is incorrect
If a submission that has been withdrawn or rejected due to lack of jurisdiction is filed again with the competent conciliation authority or court within one month of withdrawal or the declaration of non-admissibility, or if it is forwarded in accordance with Article 143 paragraph 1bis, the date of the first filing is deemed to be the date of pendency.46
The same applies if the claim was not filed under the proper procedure.
The special statutory deadlines for filing actions under the DEBA47 are reserved.
Art. 64 Effects of pendency
The pendency of an action has in particular the following effects:
the subject matter of the dispute may not be made pending elsewhere between the same parties;
the territorial jurisdiction of the court is maintained.
When compliance with statutory deadline under private law depends on the date of the statement of claim, of raising an action or of another act initiating legal proceedings, the relevant moment is that of pendency in accordance with this Code.
Art. 65 Effects of withdrawal
Any person who withdraws an action before the competent court may not bring proceedings again against the same party on the same subject matter if the court has already served the statement of claim on the defendant and the defendant does not consent to its withdrawal.
Title 5 Parties and Participation of Third Parties
Chapter 1 Capacity to be a Party and Capacity to take Legal Action
Art. 66 Capacity to be a party
The capacity to be a party is subject to legal capacity or the qualification as a party by virtue of federal law.
Art. 67 Capacity to take legal action
Any person who has the capacity to act has the capacity to take legal action.
A person without capacity to act may act through his legal representative.
Provided a person without the capacity to act has the capacity to consent, he or she may:
independently exercise those rights conferred by virtue of his or her personality;
temporarily take the acts necessary in cases of imminent danger.
Chapter 2 Representation of the Parties
Art. 68 Representation by agreement
Any person who has capacity to take legal action may choose to be represented in proceedings.
The following persons are allowed to act as professional representatives:
in all proceedings: lawyers admitted to represent parties before Swiss courts under the Lawyers Act of 23 June 200048;
before the conciliation authorities, in financial disputes under the simplified procedure and in cases under the summary procedure: licensed administrators and legal agents if provided for by cantonal law;
in cases under the summary procedure in accordance with Article 251 of this Code: professional representatives under Article 27 DEBA49;
before the special courts for tenancy matters and for employment matters: professionally qualified representatives if provided for by cantonal law.
The representative must prove his or her authority by power of attorney.
The court may order the personal appearance of a represented party.
Art. 69 Inability to appear
If a party is manifestly unable to appear, the court may invite that party to appoint a representative. If the party does not comply within the set deadline, a representative shall be appointed by the court.
The court shall notify the Adult and Child Protection Authority if protective measures are deemed necessary.50
Chapter 3 Joinder of Parties
Art. 70 Mandatory joinder
If two or more persons are in a legal relationship that calls for one single decision with effect for all of them, they must jointly appear as plaintiffs or be sued as joint defendants.
Procedural acts duly carried out by one of the joint parties are likewise effective for the others, with the exception of challenging a decision.
Art. 7151 Voluntary joinder
Two or more persons may jointly appear as plaintiffs or be sued as joint defendants provided:
rights and duties resulting from similar circumstances or legal grounds are to be assessed;
the individual cases are not subject to different types of procedure; and
the same court has material jurisdiction.
Each of the joint parties may proceed independently from the others.
Art. 72 Joint representation
The joint parties may appoint a joint representative, failing which service is made to each party individually.
Chapter 4 Third Party Intervention
Section 1 Principal Intervention
Art. 73
Any person who claims to have a better right in the object of a dispute, to the total or partial exclusion of both parties, may bring a claim directly against both parties in the court in which the dispute is pending in first instance.
The court may either suspend the proceedings until the case of the principal intervenor is finally concluded, or join the two cases.
Section 2 Accessory Intervention
Art. 74 Principle
Any person who shows a credible legal interest in having a pending dispute decided in favour of one of the parties may intervene at any time as an accessory party and for this purpose submit to the court an intervention application.
Art. 75 Application
The application for intervention shall indicate the reasons for intervention and the party in whose favour the intervention is made.
The court decides on the application after hearing the parties. An objection may be filed against the decision.
Art. 76 Rights of the Intervenor
The intervenor may carry out any procedural acts in support of the principal party, provided they are permitted at the relevant stage of the proceedings; he or she may in particular make use of any offensive or defensive measures and also seek appellate remedies.
The procedural acts of the intervenor shall not be taken into consideration in the proceedings if they are contradictory to those of the principal party.
Art. 77 Effect of intervention
A result that is unfavourable to the principal party is effective against the intervenor, unless:
the state of the proceedings at the moment of intervention or the acts or omissions of the principal party have prevented the intervenor from making use of offensive or defensive measures; or
the principal party has failed, wilfully or through gross negligence, to make use of offensive or defensive measures of which the intervenor was not aware.
Chapter 5 Third-Party Notice and Third-Party Action
Section 1 Third-Party Notice
Art. 78 Principles
A party may notify a third party of the dispute if, in the event of being unsuccessful, he or she might take recourse against or be subject to recourse by a third party.
The notified third party may also give notice of the dispute.
Art. 79 Standing of the third party
The notified third party may:
intervene in favour of the notifying principal party, without further conditions; or
proceed in place of the notifying principal party, with the consent of the latter.
If the notified third party refuses to intervene or does not answer the notification, the proceedings shall continue without considering the third party.
Art. 80 Effects of notice
Article 77 applies by analogy.
Section 2 Third-Party Action
Art. 81 Principles
The notifying party may assert the rights that he or she believes, in the event that he or she is unsuccessful, he or she will have against the notified party instituting the dispute or that it fears the notified party may have against it before the court hearing the main action, provided that:
the claims are factually related to the main action;
the court has material jurisdiction; and
the main action and the claims are to be assessed in ordinary proceedings.52
The notified third party may not bring a further third-party action.
…53
Art. 82 Procedure
The request for the third-party action to be admitted must be made with the answers or the reply in the main proceedings. The notifying party shall set out the prayers to be raised against the third party together with a brief statement of the grounds. They shall not be quantified if they relate to the same contractual performance to which the notified party is obliged in the main proceedings.54
The court shall give the opposing party and the third party the opportunity to respond.
If the third-party action is admitted, the court shall determine the time and extent of the related exchange of written submissions, subject to Article 125.
An objection may be filed against the decision to admit the third-party action.
Chapter 6 Substitution of a Party
Art. 83
If the object in dispute is alienated in the course of the proceedings, the acquirer may take up the proceedings in place of the alienating party.
The substitute party is liable for the entire costs of the proceedings. The retiring party is jointly and severally liable for the costs incurred until the substitution.
In justified cases, the substituting party must, if so requested by the opposing party, provide security to guarantee the enforcement of the decision.
In the absence of alienation of the object in dispute, the substitution of a party is permitted only with the consent of the opposing party; special legal provisions on the legal succession are reserved.
Title 6 Actions
Art. 84 Action for performance
By filing an action for performance, the plaintiff demands that the defendant be ordered to do, refrain from doing or tolerate something.
In an action for the payment of money, the amount must be specified.
Art. 85 Action for an unquantified debt
If it is impossible or unreasonable to quantify the amount of the debt at the start of the proceedings, the plaintiff may bring an action for an unquantified debt. However, the plaintiff must indicate a minimal amount as a provisional value in dispute.
Once evidence is taken or the required information furnished by the parties or third parties, the court shall set a deadline for the parties to quantify their claim.55 The seised court maintains competence even if the value in dispute exceeds its material jurisdiction.
Art. 86 Partial action
If a claim is divisible, an action for part of the claim may be brought.
Art. 87 Action to modify a legal relationship
By filing an action to modify a legal relationship, the plaintiff demands the creation, modification or dissolution of a specific right or legal relationship.
Art. 88 Action for a declaratory judgment
By filing an action for a declaratory judgment, the plaintiff demands that the court establish that a right or legal relationship exists or does not exist.
Art. 89 Group action
Associations and other organisations of national or regional importance that are authorised by their articles of association to protect the interests of a certain group of individuals may bring an action in their own name for a violation of the personality of the members of such group.
They may request the court:
to prohibit an imminent violation;
to put an end to an ongoing violation;
to establish the unlawful character of a violation if the latter continues to have a disturbing effect.
Special legal provisions on group actions are reserved.
Art. 90 Combination of actions
The plaintiff may combine two or more claims against the same party in one action, if:
they are within the material jurisdiction of the same court; and
they are subject to the same type of procedure.
The combination of actions is also permitted if a difference in material jurisdiction or type of proceedings is based solely on the value in dispute. If different types of proceedings apply to the individual claims, they shall be assessed together in the ordinary proceedings.56
Title 7 Value in Dispute
Art. 91 Principle
The value in dispute is determined by the prayers for relief. Interest, costs of the ongoing proceedings or a possible publication of the decision and the value of possible subsidiary claims are not taken into account.
If the prayers for relief do not specify a sum of money, the court shall determine the value in dispute if the parties are unable to reach an agreement or if the information they provide is manifestly incorrect.
Art. 92 Recurring usage or services
Recurring usage or services have the value of the capital they represent.
If the duration of the recurring usage or services is unknown or indefinite, the annual usage or services multiplied by twenty is deemed to be the value of the capital; in case of a life annuity, the amount of the capital corresponds to the actual cash value.
Art. 93 Joinder of parties and joinder of actions
In the event of the voluntary joinder of parties or joinder of actions, the values of the claims are added together insofar as they are not mutually exclusive.
In case of permissive joinder of parties, the type of procedure for each claim is maintained despite the addition of their values.
Art. 94 Counterclaim
In the case of an action and counterclaim, the value in dispute is determined by the action with the higher value.
For the purpose of determining the costs, the values of the action and the counterclaim are added together insofar as they are not mutually exclusive.
If the main action is a partial action, the legal costs are calculated solely on the basis of the value in dispute in the main action.57
Art. 94a58 Group action
In the case of a group action, if the parties are unable to agree on the value in dispute, or if the value they put forward is obviously incorrect, the court shall determine the value in dispute in accordance with the interests of the individual members of the group of persons concerned and the importance of the case.
Title 8 Costs and Legal Aid
Chapter 1 Procedural Costs
Art. 95 Definitions
The procedural costs are:
the court costs;
the party costs.
The court costs are:
the fee for the conciliation proceedings;
the fee for the decision (judgment fee);
the costs of taking evidence;
the costs of translation;
the costs of representation for a child (Art. 299 and 300).
The party costs are:
the reimbursement of necessary outlays;
the costs of professional representation;
in justified cases: reasonable compensation for personal expenses if a party is not professionally represented.
Art. 9659 Tariffs and right of representatives to party costs
The cantons set the tariffs for the procedural costs. The fee regulations pursuant to Article 16 paragraph 1 DEBA remain reserved60.
The cantons may provide that the lawyer has an exclusive claim to the fees and expenses awarded as party costs.
Art. 97 Advice on procedural costs
The court shall advise a party without legal representation on the costs to be expected and on legal aid.
Art. 9861 Advance payment of costs
The court or the conciliation authority may demand that the plaintiff make an advance payment not exceeding one half of the expected court costs.
It may request an advance payment not exceeding the total estimated court costs in the following cases:
proceedings under Article 6 paragraph 4 letter c and Article 8;
conciliation proceedings;
summary proceedings, with the exception of interim measures under Article 248 letter d and family law disputes under Articles 271, 276, 302 and 305;
appellate proceedings.
Art. 99 Security for party costs
At the request of the defendant, the plaintiff must provide security for party costs:
if he or she has no residence or registered office in Switzerland;
if he or she appears to be insolvent, notably if he or she has been declared bankrupt or is involved in ongoing composition proceedings or if certificates of unpaid debts have been issued;
if he or she owes costs from prior proceedings; or
if for other reasons there seems to be a considerable risk that the compensation will not be paid.
In the case of mandatory joinder, security must be provided only if each party fulfils one of the above-mentioned conditions.
No security need be provided:
in simplified proceedings, with the exception of financial disputes under Article 243 paragraph 1;
in divorce proceedings;
in summary proceedings, with the exception of the proceedings in clear cases (Art. 257);
62in proceedings relating to a dispute under the FADP63.
Art. 100 Nature and amount of security
Security may be provided in cash or in the form of a guarantee from a bank with a branch in Switzerland or from an insurance company authorised to operate in Switzerland.
The court may subsequently order the increase, reduction or return of the security.
Art. 101 Provision of advance and security
The court sets a deadline for the provision of the advance and the security.
It may order interim measures before the security is provided.
If the advance or security is not provided even within a period of grace, the action or application shall be declared inadmissible.
Art. 102 Advance for taking evidence
Each party shall advance the costs for taking the evidence that he or she requires.
If the parties offer the same evidence, each party shall advance half of the costs.
If one party fails to pay an advance, the other party may do so, failing which the evidence shall not be taken. Matters in which the court must establish the facts ex officio are reserved.
Art. 103 Appellate remedy
An objection may be filed against decisions relating to advances of costs and security.
Chapter 2 Allocation and Settlement of Procedural Costs
Art. 104 Decision on costs
As a general rule, the court decides on the procedural costs in the final decision.
Where an interim decision is made (Art. 237), the procedural costs incurred up to that point may be allocated.
The decision on the procedural costs for interim measures may be deferred until the final decision on the merits.
If a case is referred back to a lower court, the higher court may leave it to the lower court to allocate the costs of the appellate proceedings.
Art. 105 Determination and allocation of costs
The court costs are determined and allocated ex officio.
The court awards party costs according to the tariffs (Art. 96). The parties may submit a statement of costs.
Art. 106 General principles of allocation
The costs are charged to the unsuccessful party. If an action is not admitted by the court or if it is withdrawn, the plaintiff is deemed to be the unsuccessful party; in the event of the acceptance of the claim it is the defendant.
If no party entirely is successful, the costs are allocated in accordance with the outcome of the case.
If three or more persons are participating in the proceedings as principal parties or accessory parties, the court shall determine each party's share of the costs according to the extent of their participation. In the case of mandatory joinder, it may decide that they are jointly and severally liable.64
Art. 107 Discretionary allocation
The court may diverge from the general principles of allocation and allocate the costs at its own discretion:
if an action has been upheld in principle but not the full amount claimed, and if the amount of the award was determined at the court's discretion or if the claim was difficult to quantify;
if a party was caused to litigate in good faith;
in family law proceedings;
in proceedings relating to a registered partnership;
if the proceedings are dismissed as groundless and the law does not provide otherwise;
if there are other extraordinary circumstances that would result in an allocation according to the outcome of the case being inequitable.
In the event of the dismissal of actions under company law for performance to the company, the court may at its discretion apportion the procedural costs between the company and the plaintiff.65
Court costs that are not attributable to any party or third party may be charged to the canton if equitable.
Art. 108 Unnecessary costs
Unnecessary costs are charged to the party that caused them.
Art. 109 Allocation in the event of a settlement
If a case is settled in court, the costs are charged to the parties according to the terms of the settlement.
The costs are allocated according to Articles 106–108:
if the settlement does not provide for the allocation of costs; or
if, in terms of the settlement, the costs are charged solely to a party that has been granted legal aid.
Art. 110 Appellate remedy
The decision on costs may be separately challenged by filing an objection only.
Art. 111 Recovery of costs
Where a party who has paid an advance is ordered to pay costs, the court costs shall be set off against the advances paid. Otherwise an advance shall be refunded. The party liable to pay the costs shall be required to pay any shortfall.66
The party liable to pay the costs shall pay the other party the party costs awarded.67
The provisions on legal aid are reserved.
Art. 112 Deferment, waiver, prescription and interest
The court may defer or, in the event of permanent lack of means, waive the court costs.
The debt prescribes ten years after the close of proceedings.
The default interest is 5 percent.
Chapter 3 Special Provisions on Costs
Art. 113 Conciliation proceedings
No party costs are awarded in conciliation proceedings. Payment by the canton of legal agents under the legal aid system is reserved.
No court costs are charged in disputes:
relating to the Gender Equality Act of 24 March 199568;
relating to the Disability Discrimination Act of 13 December 200269;
relating to the rental and lease of residential and business property or the lease of agricultural property;
relating to an employment contract or the Recruitment Act of 6 October 198970 up to an value in dispute of 30,000 francs;
relating to the Participation Act of 17 December 199371;
relating to insurance supplementary to the social health insurance under the Federal Act of 18 March 199472 on Health Insurance;
73under the FADP74.
Art. 114 Litigation proceedings
In litigation proceedings, no court costs are charged in disputes:
relating to the Gender Equality Act of 24 March 199575;
relating to the Disability Discrimination Act of 13 December 200276;
relating to an employment contract or the Recruitment Act of 6 October 198977 up to an value in dispute of 30,000 francs;
relating to the Participation Act of 17 December 199378;
relating to insurance supplementary to the social health insurance under the Federal Act of 18 March 199479 on Health Insurance;
80because of violence, threats or harassment under Article 28b CC81 or relating to electronic monitoring under Article 28c CC;
82under the FADP83.
Art. 115 Obligation to bear costs
Court costs may also be charged in cost-free proceedings to a party who proceeds in a vexatious manner or in bad faith.
In the case of litigation relating to Article 114 letter f, court costs may also be charged to the unsuccessful party if an injunction pursuant to Article 28b CC84 or electronic monitoring pursuant to Article 28c CC is ordered against them.85
Art. 116 Exemption under cantonal law
The cantons may provide for further exemptions from procedural costs.
Exemptions from costs that the canton provides for itself, its communes or other corporations under public cantonal law also apply to the Confederation.
Chapter 4 Legal Aid
Art. 117 Entitlement
A person is entitled to legal aid if:
he or she does not have sufficient financial resources; and
his or her case does not seem devoid of any chances of success.
Art. 118 Extent
Legal aid comprises:
an exemption from the obligation to pay advances and provide security;
an exemption from court costs;
the appointment by the court of a legal agent under the legal aid system if this is necessary to protect the rights of the party concerned, and in particular if the opposing party is represented by a legal agent; the legal agent under the legal aid system may be appointed prior to the court hearing in order to prepare the proceedings.
Legal aid may be granted for all or part of the case. It can also be granted for the precautionary taking of evidence.86
The grant of legal aid does not relieve the party concerned from paying party costs to the opposing party.
Art. 119 Application and procedure
The application for legal aid may be made before or after an action becomes pending.
The applicant must disclose his or her financial circumstances including income and assets and state his or her position on the merits of the case and the evidence he or she intends to produce. He or she may name a preferred legal agent in the application.
The court shall decide on the application in summary proceedings. The opposing party may be heard, and must be heard if legal aid is to cover security for party costs.
In exceptional circumstances, legal aid may be granted with retrospective effect.
A new application for legal aid must be made in appellate proceedings.
No court costs are charged for proceedings relating to the granting of legal aid, except in cases of bad faith or vexatious conduct.
Art. 120 Revocation of legal aid
The court shall revoke legal aid if the conditions are no longer fulfilled or if it comes to light that they never were fulfilled.
Art. 121 Appellate remedy
An objection may be filed against the decision by which legal aid is refused or revoked in full or in part.
Art. 122 Recovery of costs
If a party with legal aid is unsuccessful, the costs shall be settled as follows:
the legal agent under the legal aid system shall be adequately remunerated by the canton;
the court costs shall be charged to the canton;
the opposing party shall have its advances refunded;
the party with legal aid must pay party costs to the opposing party.
If the party with legal aid is successful, the legal agent under the legal aid system shall be adequately remunerated by the canton where compensation from the opposing party is irrecoverable or likely to be irrecoverable. By paying the remuneration, the canton becomes entitled to enforce the claim for costs.
Art. 123 Reimbursement
A party must reimburse the legal aid received as soon as he or she is in a position to do so.
The canton's claim prescribes 10 years after the close of proceedings.
Title 9 Director of Proceedings, Procedural Acts and Deadlines
Chapter 1 Director of Proceedings
Art. 124 Principles
The court is the director of proceedings. It issues the required procedural rulings to enable the proceedings to be prepared and conducted efficiently.
The role of director of proceedings may be delegated to one of the members of the court.
The court may at any time attempt to achieve an agreement between the parties.
Art. 125 Simplification of proceedings
In order to simplify the proceedings, the court may, in particular:
limit the proceedings to individual issues or prayers for relief;
order the separation of jointly filed actions;
order the joinder of separately filed actions;
separate the counterclaim from the main proceedings.
Art. 126 Suspension of proceedings
The court may suspend proceedings if appropriate. The proceedings may be suspended in particular if the decision depends on the outcome of other proceedings.
An objection may be filed against the suspension.
Art. 127 Transfer of connected cases
If factually connected cases are pending before different courts, the subsequently seised court may transfer the case to the court seised first if that court agrees to take over.
An objection may be filed against the transfer.
Art. 128 Procedural discipline and vexatious conduct
Any person who violates decency in court or disrupts the course of the proceedings shall be liable to a reprimand or a disciplinary fine not exceeding 1,000 francs. In addition, the court may exclude the person concerned from the hearing.
The court may request the assistance of the police to enforce its orders.
In the event of bad faith or vexatious conduct, the parties and their representatives shall be liable to a disciplinary fine not exceeding 2,000 francs, and in the event of a repetition not exceeding 5,000 francs.
An objection may be filed against the disciplinary fine.
Chapter 2 Forms of Procedural Acts
Section 1 Language of the Proceedings
Art. 129
The proceedings shall be held in the official language of the canton in which the case is heard. Cantons that recognise two or more official languages shall regulate their use in the proceedings.
Cantonal law may provide for the following languages to be used at the request of all parties:
a different national language, whereby no party may waive the language of proceedings in accordance with paragraph 1 in advance;
English in international commercial disputes under Article 6 paragraph 4 letter c before the commercial court or the ordinary court.87
Section 2 Party Submissions
Art. 13088 Form
Submissions must be filed with the court in the form of paper documents or electronically. They must be signed.
In the case of electronic submission, the submission and its enclosures must bear a qualified electronic signature in accordance with the Federal Act of 18 March 201689 on Electronic Signatures. The Federal Council shall regulate:
the format for submissions and their attachments;
the method of transmission;
the requirements for requesting the submission of documents in paper form in the event of technical problems.
Art. 131 Number of copies
Submissions and their attachments in paper form must be filed once for the court and once for each opposing party, failing which the court may set a period of grace or make the copies at the defaulting party's expense.
Art. 132 Defective, querulous and abusive submissions
The court shall set a deadline for rectifying formal defects such as a missing signature or missing power of attorney. In the event of default, the submission is not taken into consideration.
The same applies to submissions that are illegible, improper, incomprehensible or incoherent.
Querulous or abusive submissions are returned to the sender without further formalities.
Section 3 Summons
Art. 133 Content
The summons contains:
the name and address of the summoned party;
the matter in dispute and the parties;
the capacity in which the party is summoned;
90the place, date and time of the required appearance or the availability required when using electronic equipment for audio or video transmission;
the place, date and time of the appearance;
the procedural act to which the party is summoned;
the consequences of default;
the date of the summons and the seal of the court.
Art. 134 Timing
Unless the law provides otherwise, the summons must be sent out at least 10 days prior to the date of appearance.
Art. 135 Postponement of appearance
If there is good reason, the court may postpone the date of an appearance. It may do so:
ex officio; or
if a request to do so is made before the date.
Section 4 Service of Process
Art. 136 Documents to be served
The court shall serve the persons concerned in particular with:
the summons;
rulings and decisions;
the submissions of the opposing party.
Art. 137 Service to a representative
If a party is represented, service is made to the representative.
Art. 138 Form
The summons, rulings and decisions are served by registered mail or by other means against confirmation of receipt.
Service is accomplished when the document has been received by the addressee or one of his or her employees or a person of at least 16 years of age living in the same household, unless the court instructs that a document must be served personally on the addressee.
Service is also deemed to have been effected:
in the case of a registered letter that has not been collected: on the seventh day after the failed attempt to serve it provided the person had to expect such service;
in the case of personal service if the addressee refuses to accept service and if such refusal is recorded by the bearer: on the day of refusal.
Other documents may be served by regular mail.
Art. 13991 Electronic service
With the consent of the person concerned, summonses, rulings and decisions may be served electronically. They must bear an electronic signature in accordance with the Federal Act of 18 March 201692 on Electronic Signatures.
The Federal Council regulates:
the signature to be used;
the format for summonses, rulings and decisions and their attachments;
the method of transmission;
the point in time at which the summons, ruling or decision is deemed to have been served.
Art. 140 Domicile for service
The court may instruct parties with domicile or registered office abroad to provide a domicile for service in Switzerland.
Art. 141 Public notice
Service shall be effected by notice in the official gazette of the canton or in the Swiss Official Gazette of Commerce where:
the whereabouts of the addressee are unknown and cannot be ascertained despite making reasonable enquiries;
service is impossible or would lead to exceptional inconvenience;
if a party with domicile or registered office abroad has not provided a domicile for service in Switzerland despite being instructed to do so by the court.
Service is deemed accomplished on the day of publication.
Section 593 Use of Electronic Equipment for Audio or Video Transmission
Art. 141a Principles
The court may conduct procedural acts orally on request or ex officio by using electronic audio or video equipment, in particular by videoconference, or authorise the persons participating in the proceedings to do so by using such equipment, unless the law provides otherwise and all parties agree.
If this Code requires the parties to appear in person, the use of electronic equipment is only permitted if the parties agree and there are no overriding public or private interests to the contrary.
If a hearing in accordance with this Code is public, the court shall grant access to the courtroom on request. The court may also grant access by electronic means without a prior request being required.
Art. 141b Requirements
The following requirements must be met when using electronic audio or video equipment:
The transmission of sound and images between all persons participating in the procedural act takes place simultaneously.
The examination of witnesses, questioning of parties, giving of evidence and personal hearings shall be recorded; other hearings may exceptionally be recorded on request or ex officio, unless the sole purpose of a hearing is to freely discuss the matter in dispute or to attempt to reach an agreement.
Data protection and data security are guaranteed.
With the consent of the persons concerned, video transmission may be dispensed with by way of exception if there is particular urgency or other special circumstances in the individual case.
The Federal Council shall regulate the technical requirements and the requirements for data protection and data security.
Chapter 3 Limitation Periods, Default and Reinstatement
Section 1 Limitation Periods
Art. 142 Computation
Limitation periods triggered by a communication or the occurrence of an event starting on the following day.
If a document is served by ordinary post on a Saturday, a Sunday or a public holiday recognised under federal or cantonal law at the place of jurisdiction (Art. 138 para. 4), the communication under paragraph 1 shall be deemed to have been made on the following working day.94
If a limitation period is measured in months, it expires on the same date of the last month as the date of the month in which the period started to run. In the absence of such a date, the period expires on the last day of the month.
If the last day of a limitation period is a Saturday, a Sunday or a public holiday recognised by federal or cantonal law at the location of the court, the period expires on the following working day.
Art. 143 Compliance
Submissions must be filed no later than the last day of the limitation period, either by filing with the court or by handing over to Swiss Post or a diplomatic mission or consular office of Switzerland for forwarding on to the court.
Submissions that are mistakenly filed within the time limit with a Swiss court that does not have jurisdiction are deemed to have been filed on time. If another court in Switzerland has jurisdiction, the court without jurisdiction shall forward the submission ex officio.95
In case of electronic submission, the relevant time for compliance with a deadline is that at which the receipt is issued that confirms that all the steps have been completed that the party must carry out for transmission.96
Payment to the court is made within the deadline if the funds are handed over to Swiss Post in favour of the court or debited from a postal or bank account in Switzerland no later than on the last day of the limitation period.
Art. 144 Extension
Statutory limitation periods may not be extended.
Limitation periods set by the court may be extended for good reason if the request to do so is made before the period expires.
Art. 145 Suspension of limitation periods
Statutory limitation periods or periods set by the court shall be suspended:
from the seventh day before Easter up to and including the seventh day after Easter;
from 15 July up to and including 15 August;
from 18 December up to and including 2 January.
The suspension does not apply:
in conciliation proceedings;
in summary proceedings.
Parties must be made aware of the exceptions provided in paragraph 2 above.
The provisions of this Code on the suspension of time limits apply to all actions under the DEBA97 which are to be brought before a court. They do not apply to objections filed with the supervisory authority.98
Art. 146 Effects of suspension
If service is effected during suspension, the limitation period starts to run on the first day following the end of the suspension.
No hearings are held in court during the suspension period, unless the parties agree otherwise.
Section 2 Default and Reinstatement
Art. 147 Default and consequences of default
A party is in default if he or she fails to accomplish a procedural act within the set limitation period or does not appear when summoned to appear.
The proceedings shall continue without the act defaulted on unless the law provides otherwise.
The court shall draw the parties' attention to the consequences of default.
Art. 148 Reinstatement of proceedings
The court may on application grant a period of grace or summon the parties again for a new appearance provided the defaulting party shows credibly that he or she was not responsible for the default or was responsible only to a minor extent.
The application must be submitted within 10 days of the day when the cause of default has ceased to apply.
If notice of a decision has been given to the parties, reinstatement may be requested only within six months after the decision has come into force.
Art. 14999 Reinstatement procedure
The court shall invite the opposing party to comment on the application and shall issue a final decision unless the refusal to reinstate the proceedings results in the permanent loss of rights.
Title 10 Proof
Chapter 1 General Provisions
Art. 150 Subject of evidence
Proof is required of facts that are legally relevant and disputed.
Proof may also be required of common practice, local usages and, in financial disputes, foreign law.
Art. 151 Known facts
Proof is not required in support of publicly known facts, facts known to the court and commonly accepted matters of experience.
Art. 152 Right to have evidence accepted
Each party is entitled to have the court accept the evidence that he or she offers in the required form and time.
Illegally obtained evidence shall be considered only if there is an overriding interest in finding the truth.
Art. 153 Taking of evidence ex officio
The court shall take evidence ex officio whenever it must ascertain the facts ex officio.
It may take evidence ex officio if serious doubts exist as to the truth of an undisputed fact.
Art. 154 Ruling on evidence
Before evidence is taken, the court shall issue the required rulings. They indicate, in particular, the admissible evidence and, for each fact, which party has the burden of proof or counter-proof. Rulings on evidence may be changed or amended any time.
Art. 155 Taking of evidence
The taking of evidence may be delegated to one or more members of the court.
A party may, for good cause, request that the evidence be taken by the court that decides the case.
The parties have the right to participate in the taking of evidence.
Art. 156 Safeguarding legitimate interests
The court shall take appropriate measures to ensure that taking evidence does not infringe the legitimate interests of any parties or third party, such as business secrets.
Art. 157 Free assessment of evidence
The court forms its opinion based on its free assessment of the evidence taken.
Art. 158 Precautionary taking of evidence
The court shall take evidence at any time if:
the law grants the right to do so; or
the applicant shows credibly that the evidence is at risk or that it has a legitimate interest.
The provisions regarding interim measures apply.
Art. 159 Management bodies of a legal entity
If a legal entity is party to proceedings, its management bodies are deemed to be parties when taking evidence.
Chapter 2 Duty to Cooperate and Right to Refuse
Section 1 General Provisions
Art. 160 Duty to cooperate
Parties and third parties have a duty to cooperate in the taking of evidence. In particular, they have the duty:
to make a truthful deposition as a party or a witness;
100to produce the physical records, with the exception of documents forming correspondence between a party or a third party and a lawyer who is entitled to act as a professional representative, or with a patent attorney as defined in Article 2 of the Patent Attorney Act of 20 March 2009101;
to allow an examination of their person or property by an expert.
The court has free discretion to decide on the duty of minors to cooperate.102 It shall take account of the child's welfare.
Third parties that are under a duty to cooperate are entitled to reasonable compensation.
Art. 161 Advice
The court shall advise the parties and third parties of their duty to cooperate, the right to refuse to cooperate and the consequences of default.
The court may not consider the evidence taken if parties or third parties have not been advised of their right to refuse to cooperate unless the person concerned consents or his or her refusal would not have been justified.
Art. 162 Justified refusal to cooperate
The court may not infer from a party's or third party's legitimate refusal to cooperate that the alleged fact is proven.
Section 2 Parties' Right to Refuse
Art. 163 Right to refuse
A party may refuse to cooperate if:
the taking of evidence would expose a close associate as defined in Article 165 to criminal prosecution or civil liability;
the disclosure of a secret would be an offence under Article 321 of the Swiss Criminal Code (SCC)103; the foregoing does not apply to auditors; Article 166 paragraph 1 letter b third subset applies by analogy.
Other confidants entrusted with legally protected secrets may refuse to cooperate if they credibly demonstrate that the interest in keeping the secret outweighs the interest in finding the truth.
Art. 164 Unjustified refusal
If a party refuses to cooperate without valid reasons, the court shall take this into account when appraising the evidence.
Section 3 Third Parties' Right to Refuse
Art. 165 Absolute right to refuse
The following persons have the right to refuse to cooperate:
any person who is or was married to or cohabits with a party;
any person who has a child with a party;
any person who is related to a party by birth or marriage in direct line or collaterally up to the third degree;
the foster parents, foster children and foster siblings of a party;
104the person appointed guardian or deputy for a party.
A registered partnership is deemed equivalent to marriage.
Step-siblings are deemed equivalent to siblings.
Art. 166 Limited right to refuse
Any third party may refuse to cooperate:
in establishing facts that would expose him or her or a close associate as defined in Article 165 to criminal prosecution or civil liability;
to the extent that the revelation of a secret would be an offence by virtue of Article 321 SCC105; auditors excepted; however, with the exception of lawyers and clerics, third parties must cooperate if they are subject to a disclosure duty or if they have been released from duty of secrecy, unless they show credibly that the interest in keeping the secret takes precedence over the interest in finding the truth;
106in establishing facts that have been confided in him or her in his or her official capacity as public official as defined in Article 110 paragraph 3 SCC or as a member of a public authority, or facts that have come to his or her attention in exercising his or her office or while carrying out an auxiliary activity for a public official or an authority; he or she must cooperate if he or she is subject to a disclosure duty or if he or she has been authorised to testify by his or her superior authority;
107when asked to testify as an ombudsperson, marriage or family counsellor or mediator on facts that have come to his or her attention in the course of his or her activities;
when asked in his or her capacity as professional or auxiliary person engaged in the publication of information in the editorial part of a periodical to reveal the identity of the author or the content or source of his or her information.
The confidants of other legally protected secrets may refuse to cooperate if they show credibly that the interest in keeping the secret outweighs the interest in establishing the truth.
The special provisions of social security law concerning the disclosure of data are reserved.
Art. 167 Unjustified refusal
If a third party refuses to cooperate without justification, the court may:
impose a disciplinary fine up to 1,000 francs;
threaten sanctions under Article 292 SCC108;
order the use of compulsory measures;
charge the third party the costs caused by the refusal.
The default of a third party has the same consequences as refusing to cooperate without a valid reason.
The third party may file an objection against the court's order.
Section 4109 Right to Refuse in relation to the Activities of an In-House Legal Service
Art. 167a
A party may refuse to cooperate and to hand over documents in connection with the activities of its in-house legal service if:
it is registered as a legal entity in the Swiss Commercial Register or in a comparable foreign register;
the legal service is headed by a person who holds a cantonal licence to practise law or who fulfils the professional requirements for practising law in their country of origin; and
the activity in question would be considered profession-specific for a lawyer.
A third party may refuse to cooperate and to hand over documents in connection with their activities in an internal legal service subject to the conditions set out in paragraph 1.
The parties and the third parties may file an objection against decisions on the refusal to cooperate in accordance with paragraphs 1 and 2.
The costs of disputes concerning the right of refusal in accordance with paragraphs 1 and 2 shall be borne by the party or third person who invokes it.
Chapter 3 Evidence
Section 1 Admissible Evidence
Art. 168
The following evidence is admissible:
testimony;
physical records;
inspections;
expert opinion;
written statements;
the examination of and evidence given by the parties.
The provisions relating to matters of children in family law proceedings are reserved.
Section 2 Testimony
Art. 169 Subject matter
Any person who is not a party may testify on matters that he or she has directly witnessed.
Art. 170 Summons
Witnesses are summoned by the court.
The court may allow the parties to bring along witnesses without a summons.
A witness may be questioned at his or her place of residence. The parties must be notified thereof in advance.
Art. 170a Examination by video conference
The court may conduct the examination of a witness by videoconference or other electronic method of audio or video transmission, or question a witness by such means while the other participants are present on the court's premises, provided there are no overriding public or private interests, in particular the safety of the witness, to the contrary.
Art. 171 Examination procedure
A witness shall be cautioned as to the requirement to tell the truth before being examined; if at least 14 years of age, the witness shall also be advised of the criminal consequences of perjury (Art. 307 SCC111).
The court shall question each witness individually with no other witnesses present; the foregoing is subject to the provision on confrontation.
The witness must testify without notes; the court may authorise the use of written documents.
The court shall exclude witnesses from the remainder of the hearing as long as they have not been released from being a witness.
Art. 172 Content of the examination
The court shall ask witnesses:
to state their particulars;
to describe their personal relationship with the parties and other circumstances that may be relevant to the credibility of their testimony;
to state their observations on the facts of the case.
Art. 173 Additional questions
The parties may request that additional questions be put to the witness, or, with the consent of the court, they may themselves ask such questions.
Art. 174 Confrontation
Witnesses may be confronted with other witnesses and with the parties.
Art. 175 Testimony of an expert witness
If a witness has special expertise, the court may also ask him or her questions about his or her assessment of the facts of the case.
Art. 176 Transcript
The essential details of the statement shall be placed on record, which is then read out or given to the witness to read and thereafter signed by the witness. Where a party has requested additional questions, but the request has been rejected, the questions shall also be recorded if a party so requests.112
In addition, the statement may be recorded on tape, by video or by using other appropriate technical aids.
…113
Art. 176a Transcript of recordings
If the statements made during a hearing are recorded using technical aids, the following derogations apply to the transcript:
The transcript may be created retrospectively based on the recording.
The court or the member of court conducting the examination may dispense with reading the transcript to the witness or giving the witness the transcript to read and sign.
The recording is placed on file.
Section 3 Physical Records
Art. 177115 Definition
Physical records are documents that are suitable to prove legally significant facts, such as papers, drawings, plans, photos, films, audio recordings, electronic files and the like as well as private expert opinions obtained by the parties.
Art. 178 Authenticity
The party invoking a physical record must prove its authenticity if this is disputed by the opposing party; the opposing party must give adequate grounds for disputing authenticity.
Art. 179 Probative effect of public registers and official records
Public registers and official records are conclusive proof of the facts stated therein, unless their content is proven to be incorrect
Art. 180 Production of physical records
A copy of the physical record may be produced in place of the original. The court or a party may request that the original or an officially certified copy be produced if there is justified doubt as to the authenticity of the physical record.
If parts of a lengthy physical record are cited as evidence, those parts must be highlighted.
Section 4 Inspection
Art. 181 Procedure
At the request of a party or ex officio, the court may conduct an inspection in order to see the facts for itself or for a better understanding of the case.
The court may summon witnesses or experts to the inspection.
The object of the inspection must be brought to court if it can be moved without difficulty.
Art. 182 Record
A record must be kept of the inspection. If appropriate, the record shall include plans, drawings, photographs and other technical resources.
Section 5 Expert Opinion
Art. 183 Principles
At the request of a party or ex officio, the court may obtain an opinion from one or more experts. The court must hear the parties first.
The same grounds apply for the recusal of experts as apply to judges and judicial officers.
If the court relies on the special expertise of one of its members, it must inform the parties so that they may comment.
Art. 184 Rights and obligations of the expert
The expert must tell the truth and must submit his or her opinion within the set deadline.
The court shall caution the expert as to the criminal consequences of perjury by an expert witness in terms of Article 307 SCC116 and of a breach of official secrecy under Article 320 SCC as well as the consequences of default or failure to perform the mandate adequately.
The expert is entitled to a fee. An objection may be filed against the decision of the court on the fee.
Art. 185 Mandate
The court shall instruct the expert and shall submit the relevant questions to him, either in writing or orally at the hearing.
The court shall give the parties the opportunity to respond to the questions to be put to the expert and to propose that they be modified or supplemented.
The court shall provide the expert with the necessary files and set a deadline for submitting the opinion.
Art. 186 Enquiries by the expert
With the authorisation of the court, the expert may carry out his or her own enquiries. He or she must disclose the results of the enquiries in the opinion.
At the request of a party or ex officio, the court may order that the expert's enquiries be carried out again in accordance with the rules on taking evidence.
Art. 187 Submission of the opinion
The court may order that the expert submits his or her opinion in writing or presents it orally. It may also summon the expert to the hearing in order to explain his or her written opinion. Article 170a applies mutatis mutandis.117
An orally presented opinion must be placed on record in accordance with Articles 176 and 176a.118
If two or more experts have been mandated, each one shall submit a separate opinion, unless the court decides otherwise.
The court shall give the parties the opportunity to ask for explanations or to put additional questions.
Art. 188 Default and inadequate performance
If the expert does not submit his or her opinion on time, the court may revoke the mandate and instruct another expert.
If an opinion is incomplete, unclear or insufficiently reasoned, the court may at the request of a party or ex officio order that the opinion be completed or explained, or it may call in another expert.
Art. 189 Arbitrator's opinion
The parties may agree to obtain an arbitrator's opinion on the matters in dispute.
Article 17 paragraph 2 governs the form of the agreement.
The court is bound by the arbitrator's opinion with regard to the facts established therein provided:
the parties are free to dispose of the legal relationship;
no grounds for recusal existed against the expert arbitrator; and
the opinion has been stated in an impartial manner and is not manifestly incorrect.
Section 6 Written Information
Art. 190
The court may obtain information in writing from official authorities.
It may obtain information in writing from private persons if the formal examination of a witness seems unnecessary.
Section 7 Examination of the Parties and Giving Evidence
Art. 191 Examination of the parties
The court may question one or both parties on the relevant facts of the case.
Before the examination, the parties shall be cautioned that they must tell the truth and advised that if they wilfully fail to do so, they may be liable to a disciplinary fine not exceeding 2,000 francs or, in the event of repeated failure, not exceeding 5,000 francs.
Art. 192 Giving evidence
The court may ex officio order one or both parties to give evidence subject to criminal penalties for failure to do so.
Before giving evidence, the parties shall be cautioned that they must tell the truth and advised of the criminal consequences of perjury (Art. 306 SCC119).
Art. 193120 Transcript and video conference procedure
Articles 170a, 176 and 176a apply mutatis mutandis to the questioning of parties and the evidence given.
Title 11 Mutual Assistance between Swiss Courts
Art. 194 Principle
Courts are obliged to provide mutual assistance.
They shall correspond directly with each other121.
Art. 195 Procedural acts in another canton
Any court may carry out necessary procedural acts directly in another canton; in particular, it may hold hearings and take evidence there.
Art. 196 Mutual assistance
The court may request mutual assistance. The request may be made in the official language of either the requesting or the requested court.
The requested court shall notify the requesting court and the parties of the place and time of the procedural act.
The requested court may demand the reimbursement of its outlays.
Part 2 Special Provisions
Title 1 Attempt at Conciliation
Chapter 1 Scope of Application and Conciliation Authority
Art. 197 Principle
Litigation shall be preceded by an attempt at conciliation before a conciliation authority.
Art. 198 Exceptions
Conciliation proceedings are not held:
a. in summary proceedings;
abis. 122in proceedings on violence, threats or harassment pursuant to Article 28b CC123 or on electronic monitoring pursuant to Article 28c CC;
b. in proceedings on civil status;
bbis. 124in proceedings relating to maintenance for minor and adult children and other children’s matters;
c. in divorce proceedings;
d. 125in proceedings for the dissolution or annulment of a registered partnership;
e. for the following actions arising from the DEBA126:
action for release from a debt (Art. 83 para. 2 DEBA),
action for a declaratory judgment (Art. 85a DEBA),
third party action (Art. 106-109 DEBA),
action for participation (Art. 111 DEBA),
third party actions and actions by the bankrupt estate (Art. 242 DEBA),
action to challenge the schedule of claims (Art. 148 and 250 DEBA),
action to ascertain new assets (Art. 265a DEBA),
action for the recovery of items that are subject to the right of retention (Art. 284 DEBA);
f. 127in disputes for which a court of sole cantonal instance has jurisdiction pursuant to Article 7 of this Code;
f. in disputes for which a court of sole cantonal instance has jurisdiction pursuant to Articles 5 and 6;
g. for principal intervention, counterclaim and third-party actions;
h. 128if the court has set a deadline for filing the action, and in the case of actions that are combined with such an action, provided that the actions are factually related;
i. 129in actions before the Federal Patent Court.
Art. 199 Waiver of conciliation
In financial disputes with a value in dispute of at least 100,000 francs, the parties may mutually agree to waive any attempt at conciliation.
The plaintiff may unilaterally waive conciliation:
if the defendant's registered office or domicile is abroad;
if the defendant's residence is unknown;
in disputes under the Gender Equality Act of 24 March 1995130.
In disputes for which a single cantonal instance has jurisdiction under Articles 5, 6 and 8, the plaintiff may bring the action directly before the court.131
Art. 200 Joint conciliation authorities
In disputes relating to the tenancy and lease of residential and business property, the conciliation authority shall comprise a chairperson and an equal number of representatives of each of the parties.
In disputes under the Gender Equality Act of 24 March 1995132, the conciliation authority shall comprise a chairperson and an equal number of representatives of the employer and employee and of the public and private sectors; the genders must be equally represented.
Art. 201 Tasks of the conciliation authority
The conciliation authority shall attempt to reconcile the parties in an informal manner. If it helps to resolve the dispute, a settlement may also include contentious matters that are not part of the proceedings.
In the disputes mentioned in Article 200, the conciliation authority also provides legal advice to the parties.
Chapter 2 Conciliation Proceedings
Art. 202 Initiation
Proceedings are initiated by an application for conciliation. The application may be filed in the forms provided for by Article 130 or orally for the record before the conciliation authority.
The application for conciliation must identify the opposing party and include the prayers for relief and a description of the matter in dispute.
The conciliation authority shall serve the opposing party with the application immediately and at the same time summon the parties to a hearing.
In the disputes mentioned in Article 200, it may as an exception order the exchange of written submissions if it is considering a decision proposal133 under Article 210 or a decision under Article 212.
Art. 203 Hearing
The hearing must take place within two months of receipt of the application or the end of the exchange of written submissions.
The conciliation authority shall consider the physical records presented to it and may conduct an inspection. If it is considering a decision proposal under Article 210 or a decision under Article 212, it may also take other evidence unless this will substantially delay the proceedings.
The hearing is not public. In the disputes mentioned in Article 200, the conciliation authority may allow full or partial public access to the hearings if there is a public interest.
With the consent of the parties, the conciliation authority may hold additional hearings. The duration of the proceedings must not exceed twelve months.
Art. 204 Personal appearance
The parties must appear in person at the conciliation hearing. If a legal entity is a party, a corporate body or a person who has a commercial power of attorney must appear on its behalf who is authorised to conduct the proceedings and conclude a settlement and who is familiar with the subject matter of the dispute.134
The parties may be accompanied by legal agent or a confidant.135
The following persons are exempt from appearing in person and may send a representative:
136a person or entity domiciled or registered outside the canton or abroad;
a person prevented from appearing due to illness or age or for other good cause;
in the disputes mentioned in Article 243, a person who as an employer or insurer delegates an employee or who as the landlord delegates the property manager, provided the person so delegated is authorised in writing to conclude a settlement.
137any one of two or more plaintiffs or defendants, provided one of the parties is present and authorised to represent the other plaintiffs or defendants and to conclude a settlement on their behalf.
The opposing party must be notified in advance of the representation.
Art. 205 Confidentiality of proceedings
The statements of the parties may not be recorded or used subsequently in court proceedings.
The use of the statements in the case of a decision proposal or a decision by the conciliation authority is reserved.
Art. 206 Default
If the plaintiff is in default, the application for conciliation is deemed to have been withdrawn; the proceedings shall be dismissed as groundless.
If the defendant is in default, the conciliation authority shall proceed as if no agreement has been achieved (Art. 209–212).
If both parties are in default, the proceedings shall be dismissed as groundless.
An disciplinary fine of up to CHF 1,000 may be imposed on a defaulting party.138
Art. 207 Costs of conciliation proceedings
The costs of the conciliation proceedings are charged to the plaintiff:
if the application is withdrawn;
if the proceedings are dismissed due to default;
if an authorisation to proceed is granted.
If an action is filed, the costs of the conciliation proceedings become part of the action.
Chapter 3 Agreement and Authorisation to Proceed
Art. 208 Agreement between the parties
If an agreement is reached, the conciliation authority shall place on record the terms of the settlement, the acceptance of the claim or the unconditional withdrawal of the action, and have the record signed by the parties. Each party receives a copy of the record.
The settlement, acceptance or unconditional withdrawal shall have the effect of a binding decision.
Art. 209 Authorisation to proceed
If no agreement is reached, the conciliation authority records this fact and grants authorisation to proceed:
to the landlord in cases where a rent increase is challenged;
to the plaintiff in all other cases.
The authorisation to proceed contains:
the names and addresses of the parties and their representatives, if any;
the plaintiff's prayers for relief, a description of the matter in dispute, and any counterclaim;
the date of the initiation of the conciliation proceedings;
the decision on the costs of the conciliation proceedings;
the date of the authorisation to proceed;
the seal of the conciliation authority.
The plaintiff is entitled to file the action in court within three months of authorisation to proceed being granted.
The deadline is 30 days in disputes over the tenancy and lease of residential and business property or the lease of agricultural property.139
Chapter 4 Decision Proposal and Decision
Art. 210 Decision proposal
The conciliation authority may submit a decision proposal to the parties:140
in disputes under the Gender Equality Act of 24 March 1995141;
in disputes relating to the tenancy and lease of residential and business property or the lease of agricultural property if they concern the deposit of rent, protection against abusive rent, protection against termination, or the extension of the rental relationship;
142in other financial disputes, if the value in dispute does not exceed 10,000 francs.
The decision proposal may contain a short statement of grounds; otherwise, Article 238 applies by analogy.
Art. 211 Effects
The decision proposal is deemed to be accepted and has the effect of a binding decision if none of the parties rejects it within 20 days of written notification to the parties. The rejection needs no statement of grounds.
After receiving the rejection, the conciliation authority shall grant authorisation to proceed:
to the rejecting party in matters under Article 210 paragraph 1 letter b;
to the plaintiff in all other cases.
If in matters under Article 210 paragraph 1 letter b the action is not filed in time, the decision proposal is deemed to be accepted and has the effect of a binding decision.
The parties must be advised in the decision proposal of its effects in accordance with paragraphs 1 to 3 above.
Art. 212 Decision
In financial disputes with a value in dispute not exceeding 2,000 francs, the conciliation authority may render a decision on the merits if the plaintiff so requests.
The proceedings are oral.
In the event of a decision pursuant to paragraph 1, the conciliation authority shall determine the court costs and the party costs.143
Title 2 Mediation
Art. 213 Mediation instead of conciliation
If all the parties so request, the conciliation proceedings shall be replaced by mediation.
The request must be made in the application for conciliation or at the conciliation hearing.
The conciliation authority shall grant authorisation to proceed if it is notified by one of the parties that mediation has failed.
Art. 214 Mediation during court proceedings
The court may recommend mediation to the parties at any time.
The parties may at any time make a joint request for mediation.
The court proceedings remain suspended until the request is withdrawn by one of the parties or until the court is notified of the end of the mediation.
Art. 215 Organisation and conduct of mediation
The parties are responsible for organising and conducting the mediation.
Art. 216 Relationship with court proceedings
Mediation proceedings are confidential and kept separate from the conciliation authority and the court.
The statements of the parties may not be used in court proceedings.
Art. 217 Approval of an agreement
The parties may jointly request that the agreement reached through mediation be approved. An approved agreement has the same effect as a legally binding decision.
Art. 218 Costs of mediation
The parties shall bear the costs of mediation.
In matters of child law, the parties are entitled to cost-free mediation if:144
they do not have the necessary financial resources; and
the court recommends mediation.
Cantonal law may provide for further exemptions from costs.
Title 3 Ordinary Proceedings
Chapter 1 Scope of Application
Art. 219
The provisions of this Title apply to ordinary proceedings and, by analogy, to all other proceedings, unless the law provides otherwise.
Chapter 2 Exchange of Written Submissions and Preparation for the Main Hearing
Art. 220 Initiation
The ordinary proceedings are initiated by filing the statement of claim.
Art. 221 Statement of claim
The statement of claim contains:
the designation of the parties and their representatives, if any;
the prayers for relief;
a statement of the value in dispute;
the allegations of fact;
notice of the evidence offered for each allegation of fact;
the date and signature.
The following must be filed together with the statement of claim:
a power of attorney where a party is represented;
the authorisation to proceed or the declaration that conciliation is being waived, if applicable;
the available physical records to be offered in evidence;
a list of the evidence offered.
The statement of claim may include a statement of legal grounds.
Art. 222 Statement of defence
The court shall serve the defendant with the statement of claim and at the same time set a deadline for filing a written statement of defence.
Article 221 applies to the statement of defence by analogy. The defendant must state therein which of the plaintiff's factual allegations are accepted and which are disputed.
The court may order that the statement of defence be limited to specific issues or prayers (Art. 125).
It shall serve the plaintiff with the statement of defence.
Art. 223 Failure to file a statement of defence
If the statement of defence is not filed within the deadline, the court shall allow the defendant a short period of grace.
If the statement of defence is not filed by the end of the period of grace, the court shall make a final decision provided the court is in a position to make a decision. Otherwise, it shall summon the parties to the main hearing.
Art. 224 Counterclaim
The defendant may file a counterclaim in the statement of defence, provided the claim made by the defendant is subject to the same type of procedure as the main action.
The counterclaim is also admissible and shall be assessed together with the main action in ordinary proceedings if:
the claim asserted is only to be assessed under the simplified procedure because of the value in dispute, but the main action is to be assessed in the ordinary procedure; or
the counterclaim seeks to establish the non-existence of a right or legal relationship after only part of a claim arising from this right or legal relationship has been asserted in the main action and the simplified procedure therefore only applies because of the value in dispute.145
If the value of the counterclaim exceeds the material jurisdiction of the court, the court shall transfer both claims to the court with greater material jurisdiction.
If a counterclaim is filed, the court shall set a deadline for the plaintiff to file a written defence. The plaintiff may not answer the counterclaim with a counterclaim.
Art. 225 Second exchange of written submissions
The court shall order a second exchange of written submissions if the circumstances so require.
Art. 226 Instruction hearing
The court may hold instruction hearings at any time during the proceedings.
Instruction hearings are held to discuss the matter in dispute in an informal manner, to complete the facts, to attempt to reach an agreement and to prepare for the main hearing.
The court may take evidence.
Art. 227 Amendment of the statement of claim
An amendment of the statement of claim is admissible if the new or amended claim is subject to the same type of procedure and:
a factual connection exists between the new or amended claim and the original claim; or
if the opposing party consents to the amendment of the statement of claim.
If the value of the amended action exceeds the material jurisdiction of the court, the court shall transfer the case to a court with greater material jurisdiction.
A limitation of the action is permitted at any time; the seised court retains jurisdiction.
Chapter 3 Main Hearing
Art. 228 Opening party submissions
Following the opening of the main hearing, the parties shall present their applications and state the grounds therefor.
The court shall give them the opportunity to make a reply and rejoinder.
Art. 229 New facts and evidence
If neither a second exchange of written submissions nor an instruction hearing has taken place, new facts and evidence may be presented in the main hearing in the opening party submission in accordance with Article 228 paragraph 1 without restriction.146
In other cases, new facts and evidence may be submitted by a deadline set by the court or, in the absence of such a deadline, at the latest by the opening party submission in the main hearing in accordance with Article 228 paragraph 1:
if they occurred after the exchange of written submissions or after the last instruction hearing (proper nova); or
if they existed before the close of the exchange of written submissions or before the last instruction hearing but could not have been submitted despite reasonable diligence (improper nova).147
After the opening party submissions, new facts and evidence in accordance with paragraph 2 letters a and b shall only be taken into account if they are submitted within the deadline set by the court or, in the absence of such a deadline, at the latest at the next hearing.148
Where the court must establish the facts ex officio, new facts and new evidence may be admitted until the court begins its deliberations.
Art. 230 Amendment of the statement of claim
An amendment of the statement of claim at the main hearings is admissible only if:
the conditions under Article 227 paragraph 1 are fulfilled; and
149the amendment is based on new facts or new evidence.
Article 227 paragraphs 2 and 3 apply.
Art. 231 Taking of evidence
After the party submissions, the court takes the evidence.
Art. 232 Closing submissions
After the evidence is taken, the parties may comment on the result of the evidence and on the merits of the case. The plaintiff speaks first. The court shall allow the parties the opportunity for a second round of submissions.
The parties may jointly dispense with oral closing submissions and request the submission of written party submissions. The court shall set a deadline for the same.
Art. 233 Dispensing with the main hearing
The parties may jointly agree to dispense with the main hearing.
Art. 234 Failure to attend the main hearing
In the event that a party fails to attend the main hearing, the court shall consider the submissions made in accordance with this Code. Moreover, and subject to Article 153, it may rely on the representations of the party present and on the information on file.
If both parties fail to attend, the proceedings are dismissed as groundless. The court costs are shared equally between the parties.
Chapter 4 Records
Art. 235
The court keeps a record of each hearing. This includes in particular:
the place and time of the hearing;
the composition of the court;
the presence of the parties and their representatives;
the prayers for relief, applications and declarations made on record by the parties;
the court's rulings;
the signature of the clerk.
Statements relating to the facts of the case are placed on record unless they are already included in their written submissions. In addition, they may be recorded on tape, by video, or by other appropriate technical means.
The court decides on applications for rectification of the record.
Chapter 5 Decision
Art. 236 Final decision
If the court is in a position to make a decision, it shall close the proceedings by deciding not to consider the merits or by making a decision on the merits.
The court decides by majority.
At the request of the successful party, the court shall order enforcement measures.
Art. 237 Interim decision
The court may issue an interim decision if a higher court could issue a contrary decision that would put an immediate end to the proceedings and thereby allow a substantial saving of time or costs.
The interim decision may be challenged separately; it may not be challenged later together with the final decision.
Art. 238 Content
The decision contains:
the designation and the composition of the court;
the place and date of the decision;
the designation of the parties and their representatives;
the conclusions;
the persons and authorities to be served with the decision;
instructions on appellate remedies unless the parties have waived their right to seek the same;
150the main factual and legal grounds for the decision, if applicable;
the grounds for the decision, if applicable;
the seal of the court.
Art. 239 Notice to the parties and statement of grounds
The court shall normally give notice of the decision to the parties without providing a written statement of the grounds:151
at the main hearing, by handing over the written conclusions to the parties and giving an oral summary of the grounds;
152by serving the parties promptly with the conclusions.
A written statement of the grounds must be provided if one of the parties so requests within 10 days of the notice being given of the decision. If no statement of grounds is requested, the parties are deemed to have waived their right to challenge the decision by appeal or objection.
The above is subject to the provisions of the Federal Supreme Court Act of 17 June 2005153 on notice of decisions that may be referred to the Federal Supreme Court.
Art. 240 Notice and publication of the decision
If so provided for by the law or if it serves enforcement, the decision shall be published or notice shall be given to the authorities and third parties concerned.
Chapter 6 Close of Proceedings without a Substantive Decision154
Art. 241 Settlement, acceptance, withdrawal
If notice of a settlement, acceptance of the claim or withdrawal of the action is placed on record in court, the parties must sign the record.
A settlement, acceptance of the claim or withdrawal of the action has the same effect as a binding decision.
The court shall dismiss the proceedings.
Art. 242155 Proceedings made groundless for other reasons
If for any other reasons the proceedings end without a substantive decision, the court shall issue a decision dismissing the proceedings.
Title 4 Simplified Proceedings
Art. 243 Scope of application
Simplified proceedings apply in financial disputes with a value in dispute not exceeding 30,000 francs.
They apply regardless of the value in dispute in the case of:156
disputes under the Gender Equality Act of 24 March 1995157;
158disputes concerning violence, threats or stalking pursuant to Article 28b CC159 or concerning electronic monitoring pursuant to Article 28c CC;
disputes concerning the tenancy and lease of residential and business property or the lease of agricultural property if they concern the deposit of rent, protection against abusive rent, protection against termination, or the extension of the rental relationship;
160disputes concerning the right of access to personal data under Article 25 FADP161;
disputes concerning the Participation Act of 17 December 1993162;
disputes concerning insurance supplementary to the social health insurance under the Federal Act of 18 March 1994163 on Health Insurance.
The simplified proceedings do not apply to disputes before the court of sole cantonal instance in accordance with Articles 5 and 8 and before the Commercial Court in accordance with Article 6.
Art. 244 Simplified statement of claim
The statement of claim may be filed in the forms provided for by Article 130 or orally on record before the court. It shall contain:
the designation of the parties;
the prayers for relief;
a description of the matter in dispute;
a statement of the value in dispute, if necessary;
the date and signature.
A statement of the grounds for the claim is not necessary.
The following must be filed together with the statement of claim:
a power of attorney in case of representation;
the authorisation to proceed or the declaration that conciliation has been waived;
the available physical records.
Art. 245 Summons to a hearing and statement of defence
If no grounds are stated for the action, the court shall serve the defendant with the statement of claim and summon the parties to a hearing. If a party fails to attend the hearing, the court shall immediately issue one further summons to the hearing and inform the parties of the consequences of any further default on their part. The hearing shall take place within 30 days of the first hearing.164
If the grounds for the action are stated, the court shall first set a deadline for the defendant to file a written response to the claim. If the court summons the parties to the hearing, Article 234 applies mutatis mutandis in the event of default.165
Art. 246 Procedural rulings
The court shall make the required procedural rulings so that if possible the matter may be concluded at the first hearing.
If the circumstances so require, the court may order an exchange of written submissions and hold instruction hearings.
Art. 247 Establishment of facts
By asking the appropriate questions, the court shall cause the parties to complete inadequate submissions and to indicate the evidence.
In the following cases, the court shall establish the facts ex officio:
in matters under Article 243 paragraph 2;
if the value in dispute does not exceed 30,000 francs:
in other disputes concerning the tenancy and lease of residential and business property or the lease of agricultural property,
in other employment law disputes.
Title 5 Summary Proceedings
Chapter 1 Scope of Application
Art. 248 Principle
Summary proceedings may be brought:
in the cases designated by law;
for legal protection in clear cases;
166for court injunctions and court orders;
for interim measures;
for non-contentious matters.
Art. 249 Civil Code
Summary proceedings may be brought in the following cases:167
168Law of persons:
fixing a time limit for legal transactions by minors or persons subject to a general deputyship (Art. 19a CC169),
right of reply (Art. 28l CC),
declaration of presumed death (Art. 35–38 CC),
rectification of the civil status registry (Art. 42 CC),
170measures in the event of organisational defects of an association (Art. 69c CC);
171...
Law of succession:
acceptance of an oral will (Art. 507 CC),
provision of security when inheriting from a person presumed dead (Art. 546 CC),
deferring the division of the estate and ordering measures to secure the claims of the co-heirs towards an insolvent heir (Art. 604 para. 2 and 3 CC);
Property law:
measures to preserve the value and the serviceability of an object in joint property (Art. 647 para. 2 no. 1 CC),
registration of real titles in case of extraordinary adverse possession (Art. 662 CC),
dismissal of an objection to the disposal of a condominium unit (Art. 712c para. 3 CC),
appointment and removal of the condominium administrator (Art. 712q and 712r CC),
provisional registration of statutory mortgages (Art. 712i, 712d, 779k and 837–839 CC),
setting a deadline to provide security and order the dispossession in case of usufruct (Art. 760 and 762 CC),
ordering the liquidation of debts in a usufructuary estate (Art. 766 CC),
measures in favour of the creditor to protect the value of the real estate security interest (Art. 808 para. 1 and 2 and Art. 809–811 CC),
172appointing an authorised agent on the issue of a mortgage certificate (Art. 850 para. 3 CC),
173cancellation of a mortgage certificate (Art. 856 and 865 CC),
noting of restrictions on powers of disposal and provisional entries in disputed cases (Art. 960 para. 1 sec. 1, 961 para. 1 sec. 1 and 966 para. 2 CC).
Art. 250 Code of Obligations
Summary proceedings may be brought in the following cases:174
General provisions:
deposit of an expired power of attorney with the court (Art. 36 para. 1 CO175),
setting a reasonable deadline to provide security (Art. 83 para. 2 CO),
deposit and sale of an object for the event of an obligee's default (Art. 92 para. 2 and 93 para. 2 CO),
authorisation for performance by a third party (Art. 98 CO),
setting a time limit to perform a contract (Art. 107 para. 1176 CO),
deposit of an value in dispute (Art. 168 para. 1 CO);
Specific contracts:
designation of an expert to verify the calculation of the profit share or commissions (Art. 322a para. 2 and 322c para. 2 CO),
setting a deadline to provide security in the event that a salary is at risk (Art. 337a CO),
setting a time limit in the case of non-contractual performance of work (Art. 366 para. 2 CO),
appointment of an expert to inspect the work (Art. 367 CO),
setting a time limit for the publication of a new edition of a literary or artistic work (Art. 383 para. 3 CO),
return of an object held by an official receiver (Art. 480 CO),
assessing the extent of cover by pledge in the case of joint and several surety (Art. 496 para. 2 CO),
abandonment of debt enforcement proceedings against the guarantor furnishing real security (Art. 501 para. 2 CO),
provision of security by the principal debtor and release from liability (Art. 506 CO);
Company law and the commercial register:177
provisional withdrawal of the authority to represent (Art 565 para. 2, 603 and 767 para. 1 CO),
appointment of a joint representative (Art. 690 para. 1, 764 para. 2, 792 sec. 1 and 847 para. 4 CO),
appointment, dismissal and replacement of liquidators (Art. 583 para. 2, 619, 740, 741, 770, 826 para. 2 and 913 CO),
sale at an overall sale price and modalities of sale of immovable property (Art. 585 para. 3 and 619 CO),
appointment of an expert to verify the profit and loss account and the balance sheet of the limited partnership (Art. 600 para. 3 CO),
178measures in the event of defects in the organisation of the company or co-operative (Art. 731b, 819 and 908 OR),
179ordering the disclosure of information to creditors, shareholders and members of a limited liability company and to members of a cooperative (Art. 697b, 802 para. 4, 857 para. 3 and 958e CO),
180a special investigation (Art. 697c–697hbis CO),
181convening a general meeting, putting an item on the agenda, tabling motions with short explanations in the invitation to the general meeting (Art. 699 para. 5, 699b para. 4, 805 para. 5 nos 2 and 3 and 881 para. 3 CO),
10. 182designation of a representative of the company or the cooperative in the event of a resolution of the general meeting being challenged by the management (Art. 706a para. 2, 808c and 891 para. 1 CO),
183…
deposit of amounts of claims in case of liquidation (Art. 744, 770, 826 para. 2 and 913 CO),
184removal of the directors and auditors of a cooperative (Art. 890 para. 2 CO),
14. 185reinstatement of a deleted legal entity in the commercial register (Art. 935 CO),
186ordering the dissolution of the company and its liquidation in accordance with the provisions on bankruptcy (Art. 731b, 819 und 908 CO),
187deletion of a legal entity (Art. 934 para. 3 CO);
Securities law:
cancellation of securities (Art. 981 CO),
prohibition of paying a bill of exchange and deposit of the amount payable under the bill (Art. 1072 CO),
lapse of the authority conferred by the creditors meeting on the representative of the community of creditors (Art. 1162 para. 4 CO),
convening a creditors meeting on the application by the bond creditors (Art. 1165 para. 3 and 4 CO).
Art. 251 Debt Enforcement and Bankruptcy Act of 11 April 1889
Summary proceedings may be brought in the following cases:188
decisions made in matters of clearance to proceed, bankruptcy, attachment and composition;
admission of a belated objection (Art. 77 para. 3 DEBA189) and of the objection in the enforcement of bills of exchange (Art. 181 DEBA);
revocation or suspension of the debt collection proceedings (Art. 85 DEBA);
decision on the existence of new assets (Art. 265a para. 1–3 DEBA);
ordering the separation of property (Art. 68b DEBA).
Art. 251a190 Federal Act of 18 December 1987 on Private International Law
Summary proceedings may be brought in particular in the following cases:191
appointing and replacing members of an arbitral tribunal (Art. 179 para. 2–5 PILA192);
challenging and removing a member of an arbitral tribunal (Art. 180a para. 2 and Art. 180b para. 2 PILA);
obtaining assistance from the state court in enforcing interim measures (Art. 183 para. 2 PILA) and in taking evidence (Art. 184 para. 2 PILA);
obtaining other forms of assistance from the state court in the arbitration proceedings (Art. 185 PILA);
obtaining assistance from the state court in the case of foreign arbitration proceedings (Art. 185a PILA);
depositing the award and certifying its enforceability (Art. 193 PILA);
acknowledging and executing foreign awards (Art. 194 PILA).
Cantonal law may provide that, at the request of all parties, English is used as the language of proceedings if English is used for the arbitration agreement or arbitration clause or as the language of proceedings in the arbitration.193
Chapter 2 Procedure and Decision
Art. 252 Application
An application must be made to initiate proceedings.
The application must be filed in accordance with Article 130; in simple or urgent cases, it may be filed orally on record.
Art. 253 Answer
If the request does not seem obviously inadmissible or unfounded, the court shall give the opposing party the opportunity to comment orally or in writing.
Art. 254 Evidence
Proof must be provided in the form of physical records.
Other evidence is admissible in the following cases:
if the taking of evidence does not substantially delay the proceedings;
if required by the purpose of the proceedings; or
if the court must establish the facts ex officio.
Art. 255 Principle of ex-officio investigation
The court establishes the facts ex officio:
in matters of bankruptcy and composition;
in non-contentious matters.
Art. 256 Decision
The court may dispense with a hearing and decide on the basis of the case files, unless the law provides otherwise.
If an order in a non-contentious matter retrospectively proves incorrect, it may be cancelled or modified ex officio or on request, provided this does not conflict with the law or the principle of legal certainty.
Chapter 3 Clear Cases
Art. 257
The court shall declare the case admissible under the summary procedure where:
the facts are undisputed or immediately provable; and
the legal situation is clear.
The case is subject to the principle of ex-officio assessment.
If the case is not admissible under the foregoing procedure, the court does not consider the case.
Chapter 4 Court Injunction and Court Order194
Section 1 Court Injunction195
Art. 258 Principle
Any person who holds title to immovable property may request the court to prohibit any trespass on the property and, on request, to impose a fine not exceeding 2,000 francs on any person who violates the injunction. The injunction may be temporary or indefinite.
The applicant must prove his or her real title by means of physical records and credibly show a current or imminent trespass.
Art. 259 Notice
Notice of the injunction must be published and affixed to the property in an easily visible sign.
Art. 260 Opposition
Any person who is not prepared to recognise the injunction may file an opposition with the court within 30 days of notice thereof being given by publication and at the property. The opposition needs no statement of grounds.
Opposition renders the injunction ineffective towards the opposing person. In order to validate the injunction, an action must be filed in court.
Section 2196 Court Order
Art. 260a Principle
Where possession of immovable property is disrupted or taken away by unlawful interference, the possessor may apply to the court for an order directed at persons unknown requiring removal of the disruption or return of the property, and imposing the measures necessary for affixing the order to the property and for its enforcement by the competent authority.
The applicant must prove his or her possession and provide prima facie evidence of the unlawful disruption or deprivation.
The court shall issue a decision without delay, and within five days at the latest.
On application, the court may direct the early enforcement of the order. If necessary, it shall direct protective measures or the provision of security.
Art. 260b Notice and opposition
Articles 259 and 260 shall apply mutatis mutandis to the notice and opposition proceedings. However, oppositions must be filed and substantiated within ten days.
Where early enforcement is directed, opposition need not be substantiated. The order shall remain provisionally effective against the opposing party. The court shall set a time limit of ten days for the opposing party to file an action.
Chapter 5 Interim Measures and Protective Letter
Section 1 Interim Measures
Art. 261 Principle
The court shall order the interim measures required provided the applicant shows credibly that:
a right to which he or she is entitled has been violated or a violation is anticipated; and
the violation threatens to cause not easily reparable harm to the applicant.
The court may refrain from ordering interim measures if the opposing party provides appropriate security.
Art. 262 Subject matter
The court may order any interim measure suitable to prevent the imminent harm, in particular:
an injunction;
an order to remedy an unlawful situation;
an order to a register authority or to a third party;
performance in kind;
the payment of a sum of money in the cases provided by the law.
Art. 263 Measures ordered before the action becomes pending
If the principal action is not yet pending, the court shall set a deadline within which the applicant must file his or her action, subject to the ordered measure becoming automatically ineffective in the event of default.
Art. 264 Security and damages
The court may make the interim measure conditional on the payment of security by the applicant if it is anticipated that the measures may cause loss or damage to the opposing party.
The applicant is liable for any loss or damage caused by unjustified interim measures. If the applicant proves, however, that he or she applied for the measures in good faith, the court may reduce the damages or entirely release the applicant from liability.
The security must be released once it is established that no action for damages will be filed; in case of uncertainty, the court shall set a deadline for filing the action.
Art. 265 Ex-parte interim measures
In cases of special urgency, and in particular where there is a risk that the enforcement of the measure will be frustrated, the court may order the interim measure immediately and without hearing the opposing party.
At the same time, the court shall summon the parties to a hearing, which must take place immediately, or set a deadline for the opposing party to comment in writing. Having heard the opposing party, the court shall decide on the application immediately.
Before ordering interim measures, the court may ex officio order the applicant to provide security.
Art. 266 Measures against the media
The court may order interim measures against periodically published media only if:
197an existing or imminent violation of rights is causing or may cause the applicant a particularly serious disadvantage;
the imminent violation of rights may cause the applicant a particularly serious disadvantage;
the violation is obviously not justified; and
the measure does not seem disproportionate.
Art. 267 Enforcement
The court that orders the interim measure shall also take the required enforcement measures.
Art. 268 Modification and revocation
The interim measures may be modified or revoked if the circumstances have changed or if the measures have proven unjustified.
The measures become automatically ineffective when the decision on the merits comes into force. The court may order their continuation if it serves the enforcement of the decision or if the law so provides.
Art. 269 Reservation
The following provisions are reserved:
the provisions of the DEBA198 on protective measures when enforcing monetary claims;
the provisions of the CC199 on protective measures in succession;
the provisions of the Patents Act of 25 June 1954200 on the action relating to the granting of a licence.
Section 2 Protective Letter
Art. 270
Any person who has reason to believe that an ex-parte interim measure, an attachment under Articles 271–281 DEBA201 or any other measure against him or her will be applied for without prior hearing, may set out his or her position in advance by filing a protective letter.202
The opposing party shall be served with the protective letter only if he or she initiates the relevant proceedings.
The protective letter becomes ineffective six months after it is filed.
Title 6 Special Proceedings in Marital Law
Chapter 1 Summary Proceedings
Art. 271 Scope of Application
Subject to Articles 272 and 273, summary procedure applies to measures for protection of the marital union, and in particular to:
the measures under Articles 172–179 CC203;
the extension of a spouse's power to represent the marital union (Art. 166 para. 2 sec. 1 CC);
the authorisation of a spouse to dispose of the family home (Art. 169 para. 2 CC);
the duty of a spouse to provide information on his or her income, assets and debts (Art. 170 para. 2 CC);
the separation of property and the reinstatement of the prior property regime (Art. 185, 187 para. 2, 189 and 191 CC);
the obligation of spouses to cooperate in drawing up an inventory (Art. 195a CC);
the determination of payment deadlines and the provision of security between the spouses outside proceedings on the division of the marital property (Art. 203 para. 2, 218, 235 para. 2 and 250 para. 2 CC);
the spouse's consent to the renunciation or acceptance of an inheritance (Art. 230 para. 2 CC);
directions to debtors and the provision of security for post-matrimonial maintenance outside proceedings on post-matrimonial maintenance (Art. 132 CC).
Art. 272 Principle of ex-officio investigation
The court establishes the facts ex officio.
Art. 273 Procedure
The court shall hold a hearing. It may dispense with the hearing only if the parties' submissions indicate that the facts are clear or undisputed.
The parties must appear in person if the court does not exempt them for reasons of illness or age or for other good cause.
The court shall attempt to find an agreement between the parties.
Chapter 2 Divorce Proceedings
Section 1 General Provisions
Art. 274 Initiation
Divorce proceedings are initiated by submitting a joint request for divorce or by filing an action for divorce.
Art. 275 Suspension of the common household
Each spouse has the right to suspend the common household for the duration of the divorce proceedings.
Art. 276 Interim measures
The court shall order the necessary interim measures. The provisions concerning measures for protection of the marital union apply by analogy.
Interim measures ordered by the court for the protection of the marital union shall be continued. The divorce court has jurisdiction to modify or revoke them.
The court may also order interim measures after the dissolution of the marriage if proceedings relating to the effects of the divorce continue.
Art. 277 Establishment of facts
The principle of production of evidence applies in proceedings concerning the dissolution of the marital property regime and post-marital maintenance.
If the court establishes that physical records required to decide the financial consequences of the divorce are missing, it shall order the parties to produce such documents.
The court shall otherwise establish the facts ex officio.
Art. 278 Personal appearance
The parties must appear in person at the hearing unless the court exempts them for reasons of illness or age or for other good cause.
Art. 279 Approval of the agreement
The court shall approve the agreement on the effects of the divorce if it is persuaded that the spouses have concluded the agreement of their own volition and after careful reflection, and that the agreement is clear, complete and not manifestly inequitable; the provisions on occupational pensions are reserved.
The agreement is valid only when it has been approved by the court. It must be included in the conclusions to the decision.
Art. 280 Agreement on occupational pension benefits
The court shall approve an agreement on the equitable division of claims to the occupational pensions provided:204
205the spouses have agreed on the equitable division and its modalities;
206the spouses provide confirmation from the occupational pension schemes concerned on the practicability of the arrangement and of the amount of the entitlements or pensions; and
the court is persuaded that the agreement conforms to the law.
The court shall inform the pension schemes concerned about the relevant parts of the final decision, including the details required in order to transfer of the agreed amounts. The decision is binding on the pension schemes.
If the spouses agree not to divide their pensions equally or if they decline to divide their pensions, the court shall examine ex officio whether appropriate financial security for age or invalidity remains guaranteed.207
Art. 281 Failure to agree on an equitable division of pensions208
In the absence of an agreement, and if the relevant entitlements and pensions have been determined, the court shall decide on the apportionment of the shares according to the provisions of the CC209 and the Vested Benefits Act of 17 December 1993210 (VBA) (Art. 122 and 123 CC in conjunction with Art. 22–22f VBA), determine the amount to be transferred and set a deadline for the pension funds concerned to confirm the practicability of the planned arrangement.211
Article 280 paragraph 2 applies by analogy.
In other cases in which no agreement is reached, after the final decision on the apportionment of the shares, the court shall refer the matter to the competent court under the VBA, advising it in particular of:212
the decision on the apportionment of the shares;
the date of marriage and the date of divorce;
213the pension funds against which the spouses are likely to have entitlements, and the amount of these entitlements;
214the occupational pension funds that pay the spouses pensions, the amount of those pensions and the shares of the pensions paid.
Art. 282 Maintenance payments
The agreement or decision fixing the maintenance payments must indicate:
the portions of the income and the assets of each spouse that have been taken into account;
the amount allocated to the spouse and to each child;
the amount necessary to assure the proper maintenance of the entitled spouse, if a subsequent increase in the pension is reserved;
whether and to what extent the pension will be adjusted to changes in living costs.
If the maintenance payment for the spouse is challenged, the appellate court may also reassess the maintenance payments for the children, even if they are not challenged.
Art. 283 Unity of decision
The court rules on the effects of the divorce in the divorce judgment.
Where there is good cause, the division of the marital property may be referred to separate proceedings.
The equitable division of claims to occupational pension assets may be referred in their entirety to separate proceedings if claims to pension assets abroad are involved and a decision can be obtained in the state concerned on their equitable division. The court may suspend the separate proceedings until the foreign decision has been taken; it may already determine the shares on division.215
Art. 284 Adjusting the binding effects of divorce
The conditions and the material jurisdiction for adjusting a decision are governed by Articles 124e paragraph 2, 129 and 134 CC216.217
Non-contentious modifications may be agreed in a simple written agreement, subject to the provisions of the CC concerning matters relating to children (Art. 134 para. 3 CC).
The provisions on the divorce action apply by analogy to the proceedings for contentious modifications.
Section 2 Divorce at Joint Request
Art. 285 Submission in the case of comprehensive agreement
The joint submission of the spouses contains:
the names and addresses of the spouses and details of their representatives, if any;
the joint divorce request;
the comprehensive agreement on the effects of the divorce;
the joint applications with regard to the children;
the necessary documents;
the date and signatures.
Art. 286 Submission in the case of partial agreement
In their submission, the spouses must apply for the court to rule on the effects of divorce on which they have not reached an agreement.
Each spouse may submit his or her justified application on the effects of the divorce that are not part of the agreement.
Otherwise Article 285 applies by analogy.
Art. 287218 Hearing of the parties
If the submission is complete, the court shall summon the parties to a hearing. The conduct of the hearing is governed by the provisions of the CC219.
Art. 288 Continuation of the proceedings and decision
If the conditions for a divorce at joint request are fulfilled, the court shall decree the divorce and approve the agreement.
If the effects of the divorce remain disputed, the proceedings shall be continued with regard to these effects with the parties as adversaries.220 The simplified procedure applies.221 The court may assign the roles of plaintiff and defendant.222
If the requirements for divorce at joint request are not met, the court shall reject the joint request for divorce and at the same time set a deadline to each spouse for the filing of a divorce action.223 The proceedings remain pending during this period and any interim measures continue to apply.
Art. 289 Appellate remedies
The divorce may only be contested by appeal on the grounds of lack of intent.
Section 3 Action for Divorce
Art. 290 Filing the action
An action for divorce may be filed without a written statement of the grounds. It shall contain:
the names and addresses of the spouses and the designation of their representatives, if any;
the prayer for relief requesting the divorce and an indication of the grounds (Art. 114 or 115 CC224);
the prayers for relief concerning the financial effects of the divorce;
the prayers for relief concerning the children;
the necessary documents;
the date and signatures.
Art. 291 Conciliation hearing
The court shall summon the parties to a hearing and establish whether there are grounds for divorce.
If grounds for divorce are established, the court shall attempt to secure an agreement between the spouses with regard to the effects of the divorce.
If grounds for divorce are not established or if an agreement cannot be reached, the court shall give the plaintiff the opportunity to state or add to the grounds. The proceedings shall be continued with the parties as adversaries. The simplified procedure applies.225
Art. 292 Change to divorce at joint request
The proceedings shall continue according to the provisions on divorce at joint request if the spouses:
have been separated for less than two years at the time the case becomes pending; and
agree to the divorce.
If the grounds for divorce claimed are established, no change to proceedings for divorce at joint request is made.
Art. 293 Amendment of the action
A divorce action may be changed to a separation action at any time prior to the court beginning its deliberations on the decision.
Section 4 Actions for Annulment and Separation
Art. 294
The procedure for actions for annulment and for separation is governed by analogy by the provisions on actions for divorce.
An action for separation may be transformed into an action for divorce at any time prior to the court beginning deliberations on the decision.
Title 7 Proceedings relating to Children in Family Law Matters
Chapter 1 General Provisions
Art. 295226 Principle
Individual actions relating to maintenance for minor and adult children and other matters related to children shall be decided in simplified proceedings.
Art. 296 Principles of ex-officio investigation and assessment
The court shall investigate the facts ex officio.
The parties and third parties must cooperate in the tests required to establish paternity provided such tests not pose a danger to their health. The provisions concerning the parties' and third parties' right to refuse are not applicable.
The court decides without being bound by the requests of the parties.
Art. 297 Hearing of the parents and mediation
The court hears the parents in person when ruling on matters relating to a child.
The court may ask the parents to attempt mediation.
Art. 298 Hearing the child
The child is heard in person and in an appropriate way by the court or by a third party appointed for this purpose, to the extent that the child's age or other good cause does not preclude a hearing.
The use of electronic equipment for audio or video transmission is not permitted.227
Only the information that is relevant for the decision is placed on record. This information shall be communicated to the parents or the child's welfare agent.
A child who has the capacity to consent may challenge the refusal to grant a hearing by filing an objection.
Art. 299 Appointing a representative for the child
If necessary, the court shall appoint a person experienced in welfare and legal matters to act as welfare agent for the child.
The court shall consider appointing a representative in particular if:
228the parents submit different applications regarding:
allocation of parental responsibility,
allocation of residence,
important questions concerning their personal relations with the child,
sharing responsibilities for care,
maintenance payments;
229the child protection authority or one of the parents so requests;
based on hearing with the parents or the child or based on other reasons, the court:230
231has serious doubts about the parents' joint applications relating to the issues listed under letter a, or
is considering ordering measures for the protection of the child.
If the child with the capacity to consent so requests, a representative must be appointed. The child may challenge the rejection of his or her request by filing an objection.
Art. 300232 Competence of the representative
The child's representative may file applications and appellate remedies to the extent they concern:
the allocation of the parental responsibility;
the allocation of residence;
important questions of personal relations;
sharing responsibilities for care;
maintenance payments;
f. measures for the protection of the child.
Art. 301 Notice of the decision
Notice is the decision is given:
to the parents;
to the child, if he or she is at least 14 years old;
233to the welfare agent, if any, to the extent the decision concerns the following issues:
the allocation of the parental responsibility,
the allocation of residence,
important questions of personal relations,
sharing responsibilities for care,
maintenance payments,
measures for the protection of the child.
Art. 301a234 Maintenance payments
If maintenance payments are agreed in a maintenance agreement or in the decision, the agreement or decision must indicate:
the income and assets of each parent on which the agreement or decision is based;
the amount determined for each child;
any shortfall in the amount to cover the reasonable maintenance of each child;
whether and to what extent the maintenance payments are modified to reflect changes in living costs.
Chapter 2 Summary Procedure: Scope of Application235
Art. 302 ...236
Summary procedure applies in particular in the case of:
decisions under the Hague Convention of 25 October 1980237 on the Civil Aspects of International Child Abduction and under the European Convention of 20 May 1980238 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children;
the payment of a special financial contribution to cover unforeseen extraordinary needs of the child (Art. 286 para. 3 CC239);
notice to debtors and the provision of security for child support outside proceedings on the parents' maintenance obligations (Art. 291 and 292 CC).
The provisions of the Federal Act of 21 December 2007240 on International Child Abduction and the Hague Conventions on the Protection of Children and Adults are reserved.
Chapter 3 Maintenance and Paternity Actions241
Art. 303 Interim measures
If paternity is established, the defendant may be ordered to deposit or advance appropriate amounts for the maintenance of the child.
If the action for maintenance has been filed together with the paternity action, the defendant must, at the plaintiff's request:
deposit the costs for the birth and the suitable contributions towards the maintenance of mother and child provided paternity has been shown credibly;
make suitable contributions towards the maintenance of the child support provided must be assumed and the assumption cannot be refuted by immediately available evidence.
Art. 304 Jurisdiction
The court that has jurisdiction to decide the paternity action shall also decide on the deposit, the advance payment, the disbursement of deposited amounts and the refund of advances.
In an action for maintenance, the court shall also decide on parental responsibility and other child-related issues. If a parent-child relationship is established, the parents have party status. The court may assign the roles of plaintiff and defendant.242
Title 8 Proceedings relating to Same-Sex Partnerships
Chapter 1 Summary Procedure
Art. 305 Scope of application
Summary procedure applies in particular to:243
the determination of monetary contributions to the maintenance of the partnership and the notice to debtors (Art. 13 para. 2 and 3 of the Same-Sex Partnerships Act of 18 June 2004244, SSPA),
the authorisation of a partner to dispose of the common home (Art. 14 para. 2 SSPA),
the expansion and revocation of a partner's power to represent the partnership (Art. 15 para. 2 lt. a and para. 4 SSPA),
the obligation of a partner to provide information on his or her income, assets and debts (Art. 16 para. 2 SSPA),
the determination, adjustment or cancellation of monetary contributions and the regulation of the use of the home and the household effects (Art. 17 para. 2 and 4 SSPA),
the obligation of the partners to cooperate in taking an inventory (Art. 20 para. 1 SSPA),
the restriction of a partner's power to dispose of certain assets (Art. 22 para. 1 SSPA),
the granting of deadlines for the repayment of debts between the partners (Art. 23 para. 1 SSPA).
Art. 306 Procedure
Articles 272 and 273 apply by analogy to the procedure.
Chapter 2 Dissolution and Annulment of Same-Sex Partnerships
Art. 307
The provisions concerning the divorce proceedings apply by analogy to the dissolution and annulment of same-sex partnerships.
Chapter 3245 Proceedings relating to Children in connection with Same-Sex Partnerships
Art. 307a
Where a person has adopted the minor child of his or her registered partner, Articles 295–302 apply by analogy.
Title 9 Appellate Remedies
Chapter 1 Appeal
Section 1 Decisions that may be contested and Grounds for Appeal
Art. 308 Decisions that may be contested
An appeal is admissible against:
final and interim decisions of first instance;
decisions of first instance on interim measures.
In financial matters, an appeal is admissible only if the value of the claim in the most recent prayers for relief is at least 10,000 francs.
Art. 309 Exceptions
An appeal is not admissible:
against decisions of the enforcement court;
in the following matters under the DEBA246:
revocation of the stay of enforcement (Art. 57d DEBA),
admission of a time-barred objection (Art. 77 para. 3 DEBA),
clearance to proceed (Art. 80–84 DEBA),
revocation or suspension of the debt enforcement proceedings (Art. 85 DEBA),
admission of the objection in the collection of bills of exchange (Art. 181 DEBA),
247attachment (Art. 272 and 278 DEBA);
248decisions falling under the jurisdiction of the bankruptcy or composition court under the DEBA.
Art. 310 Grounds for appeal
The appeal may be filed on grounds of:
incorrect application of the law;
incorrect establishment of the facts.
Section 2 Appeals, Answers to the Appeal and Cross Appeals
Art. 311 Filing of appeal
The appeal must be filed in writing and with a statement of the grounds with the appellate court within 30 days of service of a decision and grounds therefor or the subsequent service of the statement of grounds (Art. 239).
The appealed decision must be appended to with the appeal.
Art. 312 Answer to the appeal
The appellate court serves the appeal on the opposing party for its written comments, unless the appeal is obviously inadmissible or obviously unfounded.
An answer to the appeal must be filed within 30 days.
Art. 313 Cross appeal
The opposing party may file a cross appeal together with the answer to the appeal.
The cross appeal lapses if:
the appellate court declares the principal appeal inadmissible;
249…
the principal appeal is withdrawn before the beginning of deliberations on the decision.
Art. 314 Summary proceedings
If the decision was rendered in summary proceedings, the deadline for filing the appeal and the answer to appeal is in each case 10 days. A cross appeal is not admissible.250
In family law disputes under Articles 271, 276, 302 and 305, the deadline for filing the appeal and the answer to the appeal is 30 days. A cross appeal is admissible.251
Section 3 Effects and Procedure of an Appeal
Art. 315 Suspensive effect
The legal effect and enforceability of those parts of the contested decision to which the applications in the appeal relate shall be suspended.
The appeal does not have suspensive effect if it is filed against a decision on:
the right of reply;
interim measures.
directions to debtors;
the security provided for maintenance.252
If the appeal is against an organisational decision, it shall always have suspensive effect.253
If the party concerned is threatened with not easily reparable harm, the appellate court may on request:
authorise early enforcement and, if necessary, order protective measures or the provision of security; or
exceptionally defer enforceability in the cases referred to in paragraph 2.254
The appellate court may decide before the appeal is filed. The order is automatically cancelled if no grounds for the first instance decision are requested or the deadline for the appeal expires unused.255
Art. 316 Procedure before the appellate court
The appellate court may hold a hearing or decide on the basis of the case files.
It may order a second exchange of written submissions.
It may take evidence.
Art. 317 New facts and new evidence; Amendment of claim
New facts and new evidence are considered only if:
they are submitted immediately; and
they could not have been submitted in the first instance despite reasonable diligence.
Where the appellate court must establish the facts ex officio, new facts and new evidence may be admitted until the court begins its deliberations.256
The amendment of the claim is admissible only if:
the conditions under Article 227 paragraph 1 are fulfilled; and
257the amendment is based on new facts or new evidence.
Art. 318 Decision
The appellate court may:
confirm the challenged decision;
make a new decision; or
remit the case to the first instance if:
an essential part of the claim was not considered, or
essential issues of fact must still be established.
Article 239 applies mutatis mutandis to giving notice of and providing grounds for the decision.258
If the appellate court makes a new decision, it shall also decide on the costs at first instance.
Chapter 2 Objections
Art. 319 Object of challenge
An objection is admissible against:
final and interim decisions and decisions on interim measures of first instance that may not be challenged by an appeal;
other decisions and procedural rulings of first instance:
in the cases provided by the law,
if they threaten to cause not easily reparable harm;
undue delay by the court.
Art. 320 Grounds for an objection
An objection is admissible on the following grounds:
an incorrect application of the law;
an obviously incorrect finding in fact.
Art. 321 Filing an objection
The objection must be filed in writing and with a statement of grounds with the appellate court within 30 days of service of a decision and grounds therefor or of the subsequent service of the statement of the grounds (Art. 239).
If the objection is against a decision taken in summary proceedings or if other first-instance decisions or procedural rulings contested, the objection must be filed within 10 days unless the law provides otherwise.259
The contested decision or procedural ruling must be enclosed if it has been served on the party.
The objection on the grounds of undue delay may be filed at any time.
Art. 322 Answer to the objection
The appellate court serves the objection on the opposing party so that he or she may comment in writing thereon, unless the objection is obviously inadmissible or obviously unfounded.
The answer to the objection must be filed within the same period as applies to the objection.
Art. 323 Cross objections
Cross objections are not admissible.
Art. 324 Comments of the lower court
The appellate court may invite the lower court to comment.
Art. 325 Suspensive effect
The objection does not suspend the legal effect and enforceability of the contested decision.
The appellate court may suspend the enforceability of the contested decision, if the party concerned is threatened with not easily reparable harm. The appellate court may decide before the objection is filed. If necessary, it shall order protective measures or the provision of security. The order is automatically cancelled if no grounds for the first instance decision are requested or the deadline for the legal remedy expires unused.260
Art. 326 New applications, new facts and new evidence
New applications, new allegations of fact and new evidence are not admissible.
Special provisions of law are reserved.
Art. 327 Procedure and decision
The appellate court shall request the case files from the lower court.
It may decide on the basis of the case files.
In the event that it upholds the objection, the appellate court shall:
set aside the decision or the procedural ruling and remit the case to the lower court; or
make a new decision provided the appellate court is in the position to make a decision.
If an objection of undue delay is upheld, the appellate court may set a deadline within which the lower court must deal with the case.
Article 239 applies mutatis mutandis to the notification and justification of the decision.261
Art. 327a262 Enforcement declaration under the Lugano Convention
If the objection is against a decision of the enforcement court under Articles 38 to 52 of the Lugano Convention of 30 October 2007263 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, the appellate court shall freely examine the grounds for refusal provided in the Convention.
The objection has suspensive effect. Protective measures, in particular attachments under Article 271 paragraph 1 number 6 DEBA264, are reserved.
The deadline for filing the objection against the enforcement declaration is governed by Article 43 paragraph 5 of the Convention.
Chapter 3 Review
Art. 328 Grounds for review
A party may request the court that has decided as final instance to review the final decision if:
265the party despite exercising due diligence subsequently discovers significant facts or decisive evidence that could not have been submitted in the earlier proceedings, excluding facts and evidence that arose after the decision;
criminal proceedings have established that the decision was influenced to the detriment of the party concerned by a felony or misdemeanour, even if no one has been convicted by the criminal court; if criminal proceedings are not possible, proof may be provided in some other manner;
266it is claimed that the acceptance, withdrawal or settlement of the claim is invalid because of formal or substantive deficiencies;
267the party only discovers a reason for recusal after the proceedings have been concluded and no other legal remedy is available.
A review on the grounds of a violation of the European Convention on Human Rights of 4 November 1950268 (ECHR) may be requested if:
269the European Court of Human Rights has determined in a final judgment (Art. 44 ECHR) that the ECHR or its protocols have been violated, or the case has been concluded by means of a friendly settlement (Art. 39 ECHR);
compensation is not an appropriate remedy for the effects of the violation; and
the review is necessary to remedy the violation.
Art. 329 Deadlines and form
An application for a review must be filed in writing with a statement of the grounds within 90 days of the discovery of the grounds for review.
The right to request a review expires 10 years after the decision comes into force, except in cases under Article 328 paragraph 1 letter b.
Art. 330 Response by the opposing party
The court shall serve the application for the review on the opposing party so that he or she may respond, unless the request is obviously inadmissible or obviously unfounded.
Art. 331 Suspensive effect
A request for a review does not suspend the legal effect and enforceability of the decision.
The court may suspend the enforceability of the contested decision.270 If necessary, it shall order protective measures or the provision of security.
Art. 332 Decision on the review application
An objection may be filed against the decision on the application for review.
Art. 333 New decision on the merits
If the court upholds the request for a review, it shall quash its earlier decision and make a new one.
In the new decision, the court shall also decide on the costs of the earlier proceedings.
It shall give notice of its decision to the parties together with a written statement of grounds.
Chapter 4 Explanation and Rectification
Art. 334
If the conclusions are unclear, contradictory or incomplete, or if they do not correspond with the statement of grounds, the court shall ex officio or at the request of a party provide an explanation or rectification of the decision. The request must indicate the relevant parts and the requested changes.
Articles 330 and 331 apply by analogy. The court does not require the parties to comment when correcting typographical or arithmetical errors.
An objection may be filed against the decision on the request for explanation or rectification.
Notice of the explained or rectified decision shall be given to the parties.
Title 10 Enforcement
Chapter 1 Enforcement of Decisions
Art. 335 Scope of application
Decisions are enforced according to the provisions of this chapter.
If a decision relates to the payment of money or provision of security, it is enforced according to the provisions of the DEBA271.
The recognition, the declaration of enforceability and the enforcement of foreign decisions are governed by this chapter, unless an international treaty or the PILA272 provides otherwise.
Art. 336 Enforceability
A decision is enforceable, if:
it is legally binding and the court has not suspended its enforceability (Art. 315 Abs. 4, 325 para. 2 and 331 para. 2); or
it is not yet legally binding, but its early enforceability has been authorised.273
The court that has made the decision on enforceability shall certify the enforceability of the decision on request.
A decision issued without written grounds (Art. 239) is enforceable under the conditions set out in paragraph 1.274
Art. 337 Direct enforcement
If the court making the decision has already ordered the necessary enforcement measures (Art. 236 para. 3), the decision may be directly enforced.
The unsuccessful party may ask the enforcement court to suspend enforcement; Article 341 applies by analogy.
Art. 338 Request for enforcement
If the decision may not be directly enforced, a request for enforcement must be submitted to the enforcement court.
The applicant must establish that the requirements for enforcement apply and produce the necessary physical records.
Art. 339 Jurisdiction and procedure
Mandatory jurisdiction to order the measures of enforcement or to suspend the enforcement lies with the court:
at the domicile or registered office of the unsuccessful party;
at the place where the measures are to be taken; or
at the place where the decision to be enforced was made.
The court decides in summary proceedings.
Art. 340275 Protective measures
The enforcement court may order protective measures, if necessary without hearing the opposing party beforehand.
Art. 341 Examination of enforceability and hearing the unsuccessful party
The enforcement court shall examine enforceability ex officio.
It shall allow the unsuccessful party a brief period within which to file its comments.
On the merits, the unsuccessful party may only argue that matters preventing the enforcement of the decision have occurred since notice thereof was given, such as extinction, deferment, prescription or forfeiture of the right to due performance. Extinction and deferment must be proven by physical records.
Art. 342 Enforcement of conditional performance or performance subject to counter-performance
Decisions providing for conditional performance or performance that is subject to counter-performance may not be enforced until the enforcement court has determined that the condition is fulfilled or that the counter-performance has been duly offered, rendered, or guaranteed.
Art. 343 Obligation to act, refrain from acting or to tolerate
If the decision provides for an obligation to act, refrain from acting or to tolerate something, the enforcement court may:
issue a threat of criminal penalty under Article 292 SCC276;
impose a disciplinary fine not exceeding 5,000 francs;
impose a disciplinary fine not exceeding 1,000 francs for each day of non-compliance;
order a compulsory measure such as taking away a movable item or vacating immovable property; or
order performance by a third party.
If the decision contains an injunction under Article 28b CC277, the enforcement court may at the request of the applicant order electronic monitoring in accordance with Article 28c CC.278
The unsuccessful party and third parties must provide the required information and tolerate the required searches.
The person entrusted with enforcement may request the assistance of the competent authorities.
Art. 344 Declaration of intent
If the decision relates to a declaration of intent, the enforceable decision takes the place of the declaration.
If the declaration concerns a public register, such as the land register or the commercial register, the court making the decision shall issue the required instructions to the registrar.
Art. 345 Damages and conversion into money
The prevailing party may demand:
damages if the unsuccessful party does not follow the orders of the court;
conversion of the performance due into the payment of money.
The enforcement court shall determine the relevant amount.
Art. 346 Appellate remedy for third parties
Third parties may file an objection against enforcement decisions if the decision affects their rights.
Chapter 2 Enforcement of Official Records
Art. 347 Enforceability
Official records relating to any type of performance may be enforced in the same way as judicial decisions if:
the obligee expressly declares in the record that he or she accepts direct enforcement;
the legal ground for the performance due is mentioned in the record; and
the performance due is:
sufficiently specified in the record,
accepted in the record by the obligee, and
due.
Art. 348 Exceptions
Official records are not directly enforceable if they concern performance:
under the Gender Equality Act of 24 March 1995279;
arising from the tenancy and lease of residential and business property or the lease of agricultural property;
under the Participation Act of 17 December 1993280;
arising from employment relations or under the Recruitment Act of 6 October 1989281;
arising from consumer contracts (Art. 32).
Art. 349 Records relating to performance in money
An enforceable record relating to performance in money is deemed to be a title setting aside an objection under Articles 80 and 81 DEBA282.
Art. 350 Records relating to other forms of performance
If the enforcement of a record relating to another form of performance is sought, at the request of the obligor the notary public shall serve the obligee with a certified copy of the record, setting a deadline of 20 days for performance. The obligor receives a copy of the notification.
If performance is not rendered within the deadline, the obligor may submit a request for enforcement to the enforcement court.
Art. 351 Proceedings before the enforcement court
The obligee may contest his or her obligation to render performance only if the objection raised can be immediately proven.
If a declaration of intent is owed, the decision of the enforcement court takes the place of the declaration. The enforcement court shall issue the required instructions in accordance with Article 344 paragraph 2.
Art. 352 Judicial review
The judicial review of the performance due is reserved in every case. In particular the obligee may at any time file a claim for a declaratory judgment that the obligation does not or no longer exists or that it has been suspended.
Part 3 Arbitration
Title 1 General Provisions
Art. 353 Scope of application
The provisions of this Part apply to the proceedings before arbitral tribunals based in Switzerland, unless the provisions of the Twelfth Chapter of the PILA283 apply.
The parties may exclude the application of this Part by making a declaration to this effect in the arbitration agreement or a subsequent agreement, and instead agree that the provisions of the Twelfth Chapter of the PILA apply. The declaration must be in the form specified in Article 358.284
Art. 354 Arbitrability
Any claim over which the parties may freely dispose may be the object of an arbitration agreement.
Art. 355 Location of the arbitral tribunal
The location of the arbitral tribunal shall be determined by the parties or by the body they have designated. If no location is determined, the arbitral tribunal itself determine its location.
If neither the parties nor the designated body nor the arbitral tribunal determine the location, the ordinary court that would have jurisdiction to decide the matter in the absence of an arbitration agreement shall decide.
If several ordinary courts have jurisdiction, the location of the arbitral tribunal shall be the location of the ordinary court first seised by virtue of Article 356.
Unless the parties have agreed otherwise, the arbitral tribunal may hold hearings, take evidence and deliberate at any other location.
Art. 356 Competent ordinary courts
The canton in which the arbitral tribunal is located shall designate a superior court that shall have jurisdiction:
to decide on objections and applications for review;
to receive the arbitral award on deposit and to certify its enforceability.
The canton where the arbitral tribunal is located shall designate a different court or a differently composed court to have jurisdiction as the sole instance for:
the appointment, challenge, removal and replacement of the arbitrators;
the extension of the arbitral tribunal's term of office;
supporting the arbitral tribunal in all its procedural acts.
The competent ordinary court decides in summary proceedings other than in cases under paragraph 1 letter a.285 Article 251a paragraph 2 applies.286
Title 2 Arbitration Agreement and Arbitration Clause287
Art. 357 Arbitration agreement
The arbitration agreement may relate to existing or future disputes arising from a specific legal relationship.
The validity of the agreement may not be disputed on the ground that the main contract is invalid.
Art. 358 Form
The arbitration agreement must be done in writing or in any other form allowing it to be evidenced by text.
The provisions of this Part apply by analogy to arbitration clauses in unilateral transactions or in articles of association.288
Art. 359 Challenging the arbitral tribunal's jurisdiction
If the validity of the arbitration agreement, its content, its scope or the proper constitution of the arbitral tribunal is challenged before the arbitral tribunal, the tribunal shall decide on its own jurisdiction by way of an interim decision or in the final award on the merits.
An objection to the arbitral tribunal on the grounds of lack of jurisdiction must be raised prior to any defence on the merits.
Title 3 Constitution of the Arbitral Tribunal
Art. 360 Number of arbitrators
The parties may freely agree on the number of arbitrators. In the absence of an agreement, the arbitral tribunal shall comprise three members.
If the parties have agreed on an even number of arbitrators, it is presumed that an additional arbitrator must be appointed as the chairperson.
Art. 361 Appointment by the parties
The members of the arbitral tribunal shall be appointed as agreed by the parties.
In the absence of any agreement, each party shall appoint the same number of arbitrators; the arbitrators shall then unanimously elect another person as chairperson.
If an arbitrator is designated by his or her function, the holder of that function who accepts the mandate is deemed to be appointed.
In matters relating to the tenancy and lease of residential property, only the conciliation authority may be appointed as arbitral tribunal.
Art. 362 Appointment by the ordinary court
If the arbitration agreement provides no other body for the appointment, or if such body does not appoint the members within a reasonable time, the ordinary court competent under Article 356 paragraph 2 shall proceed with the appointment at the request of one of the parties if:
the parties cannot agree on the appointment of the single arbitrator or the chairperson;
a party fails to designate his or her arbitrator within 30 days from being requested to do so; or
the appointed arbitrators cannot agree on the appointment of the chairperson within 30 days from their appointment.
In case of a multi-party arbitration, the ordinary court competent under Article 356 paragraph 2 may appoint all the arbitrators.
If an ordinary court is designated to appoint an arbitrator, it must proceed with the appointment unless a summary examination shows that no arbitration agreement exists between the parties.
Art. 363 Duty to disclose
A person asked to take the office of an arbitrator must disclose immediately any circumstances that might raise reasonable doubts about his or her independence or impartiality.
This duty continues throughout the proceedings.
Art. 364 Acceptance of office
The arbitrators shall confirm acceptance of their office.
The arbitral tribunal is constituted only when all the arbitrators have accepted their office.
Art. 365 Secretary
The arbitral tribunal may appoint a secretary.
Articles 363 paragraph 1 and 367 to 369 apply by analogy.
Art. 366 Term of office
The parties may limit the term of office in the arbitration agreement or in a subsequent agreement.
The term of office within which the arbitral tribunal must issue its award may be extended:
by agreement of the parties;
at the request of a party or of the arbitral tribunal: by the ordinary court with jurisdiction under Article 356 paragraph 2.
Title 4 Challenge, Removal and Replacement of Arbitrators
Art. 367 Rejection of an arbitrator
A member of the arbitral tribunal may be challenged:
if he or she lacks the qualifications required by the parties;
if there is a ground for challenge in accordance with the rules of arbitration adopted by the parties; or
if there is reasonable doubt as to his or her independence or impartiality.
A party may challenge an arbitrator whom that party has appointed or in whose appointment that party has participated only if the grounds for the challenge came to the attention of the party concerned after the appointment despite exercising due diligence.289 Notice of the reason for the challenge must be given to the arbitral tribunal and the opposing party immediately.
Art. 368 Challenging the arbitral tribunal
A party may challenge the arbitral tribunal if an opposing party has exerted a predominant influence on the appointment of its members. Notice of the challenge must be given to the arbitral tribunal and the opposing party immediately.
The new arbitral tribunal is constituted according to the procedure specified in Articles 361 and 362.
The parties may appoint the members of the challenged arbitral tribunal again as arbitrators.
Art. 369 Challenge procedure
The parties may freely agree on the challenge procedure.
Unless the parties have agreed otherwise and if the arbitration proceedings have not yet been concluded, written notice of the challenge stating the grounds must be given to the challenged member of the arbitral tribunal and the other members of the arbitral tribunal within 30 days of the date on which the challenging party becomes aware of the grounds for the challenge or could have become aware thereof had it exercised due diligence.290
The challenging party may within 30 days of filing the challenge request a decision by the body designated by the parties or, if no such body has been designated, by the state court that has jurisdiction under Article 356 paragraph 2.291
Unless the parties have agreed otherwise, the arbitral tribunal may continue with the arbitration during the challenge procedure and make an award without excluding the challenged arbitrator.
The decision on the challenge may be contested only once the first arbitral award has been made.
Art. 370 Removal
Any member of the arbitral tribunal may be removed by a written agreement of the parties. The agreement requires the form specified for an arbitration agreement.292
If a member of the arbitral tribunal is unable to fulfil his or her duties within due time or with due care, unless the parties have agreed otherwise, he or she may be removed at a party's request by the body designated by the parties or, if no such body has been designated, by the ordinary court that has jurisdiction under Article 356 paragraph 2.293
Article 369 paragraph 5 applies to the challenge of the removal.
Art. 371 Replacement of an arbitrator
If an arbitrator must be replaced, the same procedure as for appointment applies, unless the parties agree or have agreed otherwise.
If replacement cannot be effected in this way, the new arbitrator shall be nominated by the ordinary court that has jurisdiction under Article 356 paragraph 2 unless the arbitration agreement excludes this possibility or becomes ineffective on the retirement of an arbitrator.
In the absence of an agreement between the parties, the newly constituted arbitral tribunal shall decide on the extent to which procedural acts in which the replaced arbitrator has participated must repeated.
The deadline within which the arbitral tribunal must issue its award is not suspended during the replacement procedure.
Title 5 Arbitration Proceedings
Art. 372 Pendency
Arbitration proceedings become pending:
when a party seises the arbitral tribunal designated in the arbitration agreement; or
if no arbitral tribunal is designated in the arbitration agreement: when a party initiates the procedure to constitute the arbitral tribunal or the preceding conciliation proceedings agreed by the parties.
…294
Art. 373 General rules of procedure
The parties may regulate the arbitration procedure:
themselves;
by referring to a set of arbitration rules;
according to a procedural law of their choice.
If the parties have not regulated the procedure, it is determined by the arbitral tribunal.
The chairperson of the arbitral tribunal may decide on certain procedural questions if he or she is authorised to do so by the parties or by the other members of the tribunal.
The arbitral tribunal must guarantee the equal treatment of the parties and their right to be heard in adversarial proceedings.
Each party may act through a representative.
An objection to a breach of the rules of procedure must be filed immediately after it has been recognised or would have been recognisable had due diligence been exercised, otherwise it may not subsequently be claimed that the rules were breached.295
Art. 374 Interim measures, security and damages
The ordinary court or, unless the parties have otherwise agreed, the arbitral tribunal may at the request of a party order interim measures, including measures to protect the evidence.
If the party concerned does not comply with the measure ordered by the arbitral tribunal, the tribunal or a party may apply to the ordinary court for it to issue the necessary orders.296
The arbitral tribunal or the ordinary court may make the interim measures conditional on the payment of security if it is anticipated that the measures may cause harm to the other party.
The applicant is liable for the harm caused by unjustified interim measures. If he or she proves, however, that the application for the measures was made in good faith, the arbitral tribunal or the ordinary court may reduce the damages or relieve the applicant entirely from liability. The aggrieved party may assert his or her claim in the pending arbitration.
The security must be released once it is established that no claim for damages will be filed; where there is uncertainty, the court shall set a deadline for filing the action.
Art. 375 Taking of evidence and participation of the ordinary court
The arbitral tribunal takes the evidence itself.
If the taking of evidence or any other procedural act requires the assistance of the official authorities, the arbitral tribunal may request the participation of the ordinary court that has jurisdiction under Article 356 paragraph 2. With the consent of the arbitral tribunal, the same may also be requested by a party.
The members of the arbitral tribunal may participate in the procedural acts of the ordinary court and may ask questions.
Art. 376 Joinder of parties, joinder of actions and participation of third parties
Arbitration may be initiated by or against joint parties if:
all the parties are connected among themselves by one or more corresponding arbitration agreements; and
the asserted claims are identical or factually connected.
Factually connected claims between the same parties may be joined in the same arbitration proceedings if they are the subject of corresponding arbitration agreements between these parties.
The intervention of a third party and the joinder of a person notified as a party to an action require an arbitration agreement between the third party and the parties to the dispute and are subject to the consent of the arbitral tribunal.
Art. 377 Set-off and counterclaim
The arbitral tribunal has jurisdiction to decide the set-off defence, even if the claim to be set off does not fall within the scope of the arbitration agreement or is subject to another arbitration agreement or an agreement on jurisdiction.
The counterclaim is admissible if it concerns a claim that is covered by a corresponding arbitration agreement between the parties.
Art. 378 Advance of costs
The arbitral tribunal may order the advance of the presumed costs of the proceedings and may make the proceedings conditional on the payment of the advance. Unless the parties have agreed otherwise, the arbitral tribunal determines the amount to be paid by each party.
If one party does not pay the required advance, the other party may advance the entire costs or withdraw from the arbitration. In the latter case, the party withdrawing may initiate new arbitration proceedings for the same matter or proceed before the ordinary court.
Art. 379 Security for party costs
If the plaintiff appears to be insolvent, the arbitral tribunal may at the defendant's request order that security be provided by a certain deadline for the probable party costs due by the defendant. Article 378 paragraph 2 applies by analogy.
Art. 380 Legal aid
Legal aid is excluded.
Title 6 Arbitral Award
Art. 381 Applicable law
The arbitral tribunal decides:
according to the rules of law chosen by the parties; or
based on equity, if the parties have authorised it to do so.
In the absence of such choice or authorisation, it shall decide according to the law that an ordinary court would apply.
Art. 382 Deliberations and decision
All members of the arbitral tribunal must participate in the deliberations and decisions.
If an arbitrator refuses to participate in a deliberation or a decision, the others may deliberate or decide without him or her, unless the parties have agreed otherwise.
The award is determined by a majority decision, unless the parties have agreed otherwise.
If no majority is reached, the award is determined by the chairperson.
Art. 383 Interim and partial awards
Unless the parties have agreed otherwise, the arbitral tribunal may limit the proceedings to certain questions or prayers for relief.
Art. 384 Content of the award
The award contains details of:
the composition of the arbitral tribunal;
the location where the arbitral tribunal sits;
the parties and their representatives;
the parties' prayers for relief or, if none, the question to be decided;
unless the parties have explicitly dispensed with this requirement: a statement of the facts, the legal considerations and, if applicable, the considerations in equity;
the conclusions on the award on the merits, as well as the amount and allocation of the costs and party costs;
the date of the award.
The award must be signed; the signature of the chairperson suffices.
Art. 385 Agreement between the parties
If the parties settle their dispute in the course of the arbitral proceedings, the arbitral tribunal shall on request record the agreement in the form of an award.
Art. 386 Notice and deposit
Each party is served with notice of the award.
Each party may at his or her own expense deposit a copy of the award with the ordinary court that has jurisdiction under Article 356 paragraph 1.
At the request of a party, this court shall certify the award as enforceable.
Art. 387 Effect of the award
Once notice of the award has been given to the parties, it has the effect of a legally-binding and enforceable judicial decision.
Art. 388 Correction, explanation and amendment of the award
Either party may apply to the arbitral tribunal to:
correct typographical and arithmetical errors in the award;
explain specific parts of the award;
or issue a supplementary award in relation to claims made in the arbitration proceedings that were not considered in the award.
The application must be made to the arbitral tribunal within 30 days from the discovery of the error or the parts of the award that need to be explained or amended, but no later than one year from receiving notice of the award.
The application does not affect the deadlines for filing appeals. A new period for filing an appeal in relation to the corrected, explained or supplemented part of the award begins from the date on which notice of the correction, explanation or supplement is given.297
Title 7 Appellate Remedies
Chapter 1 Objections
Art. 389 Objection to the Federal Supreme Court
An arbitral award is subject to objection to the Federal Supreme Court.
The procedure is governed by the Federal Supreme Court Act of 17 June 2005298, unless otherwise provided in this Chapter.
Art. 390 Objection to the cantonal court
By express declaration in the arbitration agreement or in a subsequent agreement, the parties may agree that the arbitral award may be contested by way of objection to the cantonal court that has jurisdiction under Article 356 paragraph 1.
The procedure is governed by Articles 319 to 327, unless otherwise provided in this Chapter. The decision of the cantonal court is final.
Art. 391 Subsidiarity
An objection is only admissible after the means of arbitral appeal provided for in the arbitration agreement are exhausted.
Art. 392 Challengeable awards
An objection is admissible against:
partial and final awards;
interim awards on the grounds listed in Article 393 letters a and b.
Art. 393 Grounds for objection
An arbitral award may be contested on the following grounds:
the single arbitrator was appointed or the arbitral tribunal composed in an irregular manner;
the arbitral tribunal wrongly declared itself to have or not to have jurisdiction;
the arbitral tribunal decided issues that were not submitted to it or failed to decide on a prayer for relief;
the principles of equal treatment of the parties or the right to be heard were violated;
the award is arbitrary in its result because it is based on findings that are obviously contrary to the facts as stated in the case files or because it constitutes an obvious violation of law or equity;
the costs and compensation fixed by the arbitral tribunal are obviously excessive.
Art. 394 Remit for rectification or amendment
After hearing the parties, the appellate court may remit the award to the arbitral tribunal, setting a deadline to rectify or amend it.
Art. 395 Decision
If the award is not remitted to the arbitral tribunal or if it is not rectified or amended by the tribunal within the set deadline, the appellate court shall decide and, if the objection is approved, shall set aside the award.
If the award is set aside, the arbitral tribunal shall make a new award consistent with the considerations taken into account in the decision to remit the case. If the tribunal is no longer complete, Article 371 applies.299
Setting aside may be limited to certain parts of the award if the other parts do not depend on them.
If the arbitral award is contested on the grounds that the compensation and costs are obviously excessive, the appellate court may itself decide on them.
Chapter 2 Review
Art. 396 Grounds for review
A party may request the ordinary court that has jurisdiction under Article 356 paragraph 1 to review an arbitral award if:
300the party, despite exercising due diligence, subsequently discovers significant facts or decisive evidence that could not have been submitted in the earlier proceedings; excluded are facts and evidence that arose after the arbitral award was made;
criminal proceedings have established that the arbitral award was influenced to the detriment of the party concerned by a felony or misdemeanour, even if no one is convicted by a criminal court; if criminal proceedings are not possible, proof may be provided in some other manner;
it is claimed that the acceptance, withdrawal or settlement of the claim is invalid;
301a ground for challenge under Article 367 paragraph 1 letter c only came to light after conclusion of the arbitration proceedings despite exercising due diligence and no other legal remedy is available.
The review on the grounds of a violation of the ECHR302 may be requested if:
303the European Court of Human Rights has determined in a final judgment (Art. 44 ECHR) that the ECHR or its protocols have been violated, or the case has been concluded by means of a friendly settlement (Art. 39 ECHR);
compensation is not an appropriate remedy for the effects of the violation; and
the review is necessary to remedy the violation.
Art. 397 Deadlines
The request for review must be filed within 90 days of discovery of the grounds for review.
The right to request for a review expires 10 years after the award comes into force, except in cases under Article 396 paragraph 1 letter b.
Art. 398 Procedure
The procedure is governed by Articles 330 to 331.
Art. 399 Remit to the arbitral tribunal
If the court approves the request for review, it shall set aside the arbitral award and remit the case to the arbitral tribunal for a new decision.
If the arbitral tribunal is no longer complete, Article 371 applies.
Part 4 Final Provisions
Title 1 Implementation
Art. 400 Principles
The Federal Council shall issue the implementing provisions.
It provides forms for court records and party submissions. The forms for the parties must be designed in a way that they can be completed by persons who are not legally trained.
The Federal Council shall provide the public with information on legal costs and the possibilities of legal aid and litigation funding.304
The Federal Council may delegate responsibility for issuing administrative and technical regulations and providing forms and information to the Federal Office of Justice.305
Art. 401 Pilot projects
The cantons may carry out pilot projects with the consent of the Federal Council.
The Federal Council may delegate competence for the approval of such projects to the Federal Office of Justice.
Art. 401a306 Statistics and business figures
The Confederation and the cantons shall work with the courts to ensure that sufficient basic statistical information and business figures related to the indicators for the application of this Code are made available, and in particular the number, type, subject matter, duration and cost of the proceedings.
Title 2 Amendment of Legislation
Art. 402 Repeal and amendment of current legislation
The repeal and amendment of existing legislation is dealt with in Annex 1.
Art. 403 Coordination provisions
The coordination of this Code with provisions of other enactments is dealt with in Annex 2.
Title 3 Transitional Provisions
Chapter 1 Transitional Provisions of 19 December 2008307
Art. 404 Continued application of the previous law
Proceedings that are pending when this Code comes into force are governed by the previous procedural law until the close of the proceedings before the respective instance.
Territorial jurisdiction is governed by the new law. However, jurisdiction conferred under the previous law continues.
Art. 405 Appellate remedies
Appellate remedies are governed by the law in force when notice of the decision is given to the parties.
The review of a decision notified under the previous law is governed by the new law.
Art. 406 Agreement on jurisdiction
The validity of an agreement on jurisdiction is governed by the law in force at the time of conclusion of the agreement.
Art. 407 Arbitration
The validity of arbitration agreements concluded before the commencement of this Code is governed by the law that favours the agreement.
Arbitration proceedings that are pending on the commencement of this Code are governed by the previous law. The parties may, however, agree on the application of the new law.
Appellate remedies are governed by the law in force when notice of the arbitral award is given to the parties.
Judicial proceedings under Article 356 that are pending on the commencement of this Code are governed by the previous law.
Chapter 2308 Transitional Provision to the Amendment of 28 September 2012
Art. 407a
In proceedings that are pending when the Amendment of 28 September 2012 to this Code comes into force, the new law applies to procedural acts from the date on which the Amendment comes into force
Chapter 3309 Transitional Provision to the Amendment of 20 March 2015
Art. 407b
The new law applies to proceedings that are pending when the Amendment of 20 March 2015 comes into force.
New prayers for relief that are filed as a result of the change in the law applicable are permitted; uncontested parts of a decision remain binding unless they are so closely materially connected with prayers for relief that have yet to be judged that it is reasonable to judge the entire matter.
Chapter 4310 Transitional Provision to the Amendment of 19 June 2015
Art. 407c
The new law applies to divorce proceedings that are pending when the Amendment of 19 June 2015 comes into force.
New prayers for relief that are filed as a result of the change in the law applicable are permitted; uncontested parts of a decision remain binding unless they are so closely materially connected with prayers for relief that have yet to be judged that it is reasonable to judge the entire matter.
Chapter 5311 Transitional Provision to the Amendment of 14 December 2018
Art. 407d
The new law applies to proceedings pending when the amendment of 14 December 2018 comes into force.
Chapter 6312 Transitional Provision to the Amendment of 25 September 2020
Art. 407e
The new law applies to proceedings pending when the amendment of 25 September 2020 comes into force.
Chapter 7313 Transitional Provision to the Amendment of 17 March 2023
Art. 407f
Articles 8 paragraph 2 second sentence, 63 paragraph 1, 118 paragraph 2 second sentence, 141a, 141b, 143 paragraph 1bis, 149, 167a, 170a, 176 paragraph 3, 176a, 177, 187 paragraph 1 third sentence and 2, 193, 198 letters bbis, f, h and i, 199 paragraph 3, 206 paragraph 4, 210 paragraph 1 introductory sentence and letter c, 239 paragraph 1, 298 paragraph 1bis, 315 paragraphs 2-5, 317 paragraph 1bis, 318 paragraph 2, 325 paragraph 2, 327 paragraph 5 and 336 paragraphs 1 and 3 also apply to proceedings that are pending when the Amendment of 17 March 2023 comes into force.
Title 4 Referendum and Commencement
Art. 408
This Code is subject to an optional referendum.
The Federal Council shall determine the commencement date.
Commencement Date: 1 January 2011314
Repeal and Amendment of Current Legislation
(Art. 402)
I. Repeal of current legislation
The Civil Jurisdiction Act of 24 March 2000315 is repealed.
II. Amendment of current legislation
The federal acts below are amended as follows:
...316
Coordination Provisions
(Art. 403)
1. Coordination of the Civil Procedure Code with the new Nuclear Energy Public Liability Act
Irrespective of whether the Nuclear Energy Public Liability Act of 13 June 2008317 (new NEPLA) or the Civil Procedure Code of 19 December 2008 (CPC) comes into force first, on commencement of the enactment that comes into force later or if both enactments come into force on the same date, the CPC shall be amended as follows:
…318
2. Coordination of Number 19 of Annex 1 with the new NEPLA
Irrespective of whether the new NEPLA319or the CPC comes into force first, on commencement of the enactment that comes into force later or if both enactments come into force on the same date, Number 19 of Annex 1 of the CPC ceases to apply and the new NEPLA shall be amended in accordance with Number 20 of Annex 1 of the CPC.
3. Coordination with the Amendment of the Civil Code (CC) of 19 December 2008 (Protection of Adults, Law of Persons and Law on Children)
Irrespective of whether the amendment of the CC of 19 December 2008320 (protection of adults, law of persons and law on children) of the CPC comes into force first, on commencement of the enactment that comes into force later or if both enactments come into force on the same date, the CPC shall be amended as follows:
...321