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- Art. 96 para. 2 lit. a FC
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- Art. 734f CO
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- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
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- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
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- Art. 35 FADP
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- Art. 40 FADP
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- Art. 44a FADP
- Art. 45 FADP
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- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
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- Art. 51 FADP
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- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. Introduction and structure of the commentary
- II. Legislative history
- III. Fundamentals of Art. 407f nZPO
- IV. Revised law within the scope of application of Art. 407f nZPO
- V. Revised law outside the scope of application of Art. 407 et seq. nZPO
- Bibliography
- Materials
I. Introduction and structure of the commentary
1 On January 1, 2025, the revision of the CPC “Improving practical suitability and law enforcement” of March 17, 2023, will come into force and bring with it numerous changes. In view of the transition from the previous to the new law, the transitional provision in Art. 407f CPC is of central importance. As so-called intertemporal law, this norm is dedicated to the demarcation of civil procedural provisions that follow one another over time. The term transitional law is used synonymously. Intertemporal law determines whether the old or new civil procedural provision applies to a specific (procedural) set of facts (“either-or law”).
2 “Art. x aZPO” is used if reference is made to a provision of the CPC that is in force until December 31, 2024. The new civil procedure law is referenced with “Art. x nZPO” (also changes in the PILA, SchKG and BGG). If no “a” or “n” is placed in front of it, both the (unchanged) law before and after January 1, 2025 is meant.
3 The commentary begins with the history of the origin of Art. 407f CPC (N. 4 et seq.). Subsequently, the fundamentals are explained (N. 9 et seq.). This raises the question, among other things, of whether the list in Art. 407f CPC is exhaustive (N. 17 f.). The following Chapter IV is devoted to each of the in Art. 407f CPC contained standards (N. 33 ff.). Finally, Chapter V deals with the transitional provisions of the norms not included in Art. 407f CPC (see below N. 89 et seq.). These also include the amended provisions of the PILA, SchKG and BGG, unless they have already been discussed in the previous chapter in connection with the amendment of a provision of the CPC. Editorial changes to the French and Italian texts are not discussed.
II. Legislative history
4 Neither the preliminary draft nor the draft contained any transitional provisions. Neither the explanatory report nor the message commented on transitional law. The representative of the Federal Office of Justice stated in the Legal Affairs Committee of the Council of States that transitional law was anchored at the end of the CPC. For this reason, no separate transitional provision was included in the draft. What is important here is that the principle applies in procedural law (although not explicitly stated in the law) that it comes into force immediately, i.e. when an amendment comes into force (see below N. 11). The law only contains exceptions to this principle (in particular with regard to jurisdiction and procedural coordination). Art. 404–407 CPC apply to these.
5 In order to clarify the situation, the Council of States' Committee for Legal Affairs inserted a transitional provision into Art. 407 CPC, which contains the same mechanism as the current Art. 407f nCPC by listing certain amended provisions. The Council of States followed the lead of its committee. Since the Council of States had no intention of overwriting the existing Art. 407 CPC, the National Council created the new Art. 407e CPC from it.
6 Due to the transitional provision being designed as a catalog of amended CPC provisions, the definitive wording of Art. 407e CPC could only be determined once it was clear what the National Council and the Council of States had materially decided. For this reason, the catalog in Art. 407e CPC was adapted to the respective decisions by the secretariat of the commission in collaboration with the administration. Art. 407e CPC was then adapted to reflect the status of the parliamentary deliberations. Art. 407e CPC later became the new Art. 407f nCPC. Art. 407e CPC contains the transitional provision concerning the civil procedural provisions that came into force with the new FADP on September 1, 2023.
7 Historical interpretation seeks to determine the meaning of a norm in its genesis. In doing so, the materials, including the message and the official bulletin of the National Council and the Council of States, are taken into account. Central aspects of Art. 407f nZPO arise from the protocols of the parliamentary commissions (see below N. 17 and N. 20). The Federal Supreme Court and the majority of legal scholars take the committee minutes into account when conducting a historical interpretation. According to Art. 4 para. 2 let. c ParlVV, the committee minutes serve, among other things, the subsequent interpretation of enactments. According to Art. 47 para. 1 ParlA, the deliberations in the committee are confidential. The commission minutes are to be made available for the application of the law and for scientific purposes (Art. 7 para. 1 ParlVV). It should be noted that the commission minutes can only be inspected after a vote in a possible referendum (see Art. 7 para. 1 ParlVV).
8 There are justifiably critical voices regarding the use of the commission protocols because they are not publicly accessible. It is argued that secret material that is not publicly accessible should not be taken into account in the historical interpretation. As a result, the population is unaware of how the law could be interpreted. Therefore, in the future it is desirable that the ideas under transitional law are already explained in the dispatch or that the statements of the commissions are repeated in parliament. This would make them readily accessible to the general public. Since the commission protocols are taken into account in practice, this commentary is also based on the statements contained therein.
III. Fundamentals of Art. 407f nZPO
9 Before discussing transitional issues with regard to individual norms, a general presentation of the mechanism enshrined in Art. 407f nZPO will be provided. First, its mode of operation is explained (N. 11 f.). Thereafter, the question is clarified as to whether the catalog contained in Art. 407f nZPO is exhaustive (N. 17 f.). The following comments deal with Art. 407f nZPO in relation to the general transitional provisions in Art. 404 et seq. CPC (N. 19 et seq.). Numerous provisions of cantonal administrative procedural law refer to the CPC. This raises the question of whether these are dynamic references that always refer to the current version of the CPC. If this is the case, then article 407f of the new CPC also plays a role in cantonal administrative procedural law from a transitional law perspective (N. 30 et seq.).
10 In this context, it is irrelevant whether the old or new law applies if the new law merely codifies federal court case law developed under the old law (e.g. N. 68, 81, 93, 100, 105, 112 f., 158, 167 and 180). Also insignificant are editorial changes without substantive significance (e.g. N. 65, N. 159 and N. 172). In the absence of substantive changes, the law applicable in terms of time is not relevant.
A. How the list in Art. 407f of the new Swiss Code of Civil Procedure (CPC) works
11 Art. 407f of the new CPC, like other transitional provisions of the CPC, stipulates that the new law applies to proceedings that are legally pending when it comes into force. This is in line with the intertemporal principle, according to which procedural law applies immediately, i.e. from the time it comes into force. In contrast to other revisions, Art. 407f nZPO does not declare the entire new law to be applicable, but only individual provisions listed in a catalog (see below N. 33 et seq. for the list). Finally, Art. 407f nZPO also does not contain any special provisions that only apply to the transition period. Art. 407f nZPO declares various provisions of the new law applicable to proceedings pending before January 1, 2025 (see below N. 33 et seq.). Of importance is, on the one hand, the lis pendens and, on the other hand, the concept of “proceedings” (see below N. 13 et seq. and N. 16).
12 The new law applies to proceedings that become legally pending after January 1, 2025. These proceedings have no relation to the period of validity of the old law. However, the period to which the material legal relationship forming the subject matter of the dispute (i.e. the facts of the case) belongs is irrelevant.
1. Point in time of the legal pendency
13 The filing of an application for conciliation, a statement of claim, a petition or a joint petition for divorce gives rise to lis pendens (Art. 62 para. 1 CPC). The decisive factor is the date of submission of the document instituting the proceedings to Swiss Post or a Swiss diplomatic or consular representation (see Art. 143 para. 1 CPC). In the case of oral statements, the time of signing the minutes is decisive (see Art. 202 para. 1, 244 para. 1 and Art. 252 para. 2 CPC). In the case of a newly submitted or forwarded submission, the date of the first submission is deemed to be the decisive point in time (Art. 63 para. 1 CPC; see also below N. 35).
14 The action becomes pending only to the extent of the legal requests asserted. If an amended or new claim is submitted in terms of Art. 227 CPC, it only becomes pending with this submission or the protocol declaration. A counterclaim becomes pending independently by filing it in the conciliation proceedings or when it is raised in the statement of defense (see Art. 209 para. 2 let. b and Art. 224 para. 1 CPC).
15 For arbitration proceedings, Art. 372 CPC applies as a lex specialis to determine pending cases (see below N. 211 f.).
2. The concept of “proceedings” in art. 407sq. new CPC
16 The term “proceedings”, which is used in art. 407sq. new CPC and in other provisions of the CPC, is not clearly defined in the CPC, in legal doctrine or in case law. The CPC also uses the term “litigation”. According to the dictionary, a “procedure” is a series of legal acts that serve to resolve a legal matter and take place before authorities or courts. Within the scope of application of the CPC, a procedure is deemed to exist if the court decides on a private legal relationship between at least one private (natural or legal) person. In my opinion, the term “process” is a synonym for “procedure”.
B. Nature of the list in Art. 407 et seq. of the new Code of Civil Procedure
17 It is debatable whether the list in Art. 407 et seq. of the new Code of Civil Procedure is exhaustive. The wording suggests that it is exhaustive because the addition “in particular” is missing. In addition, when such a catalog is inserted, it is generally assumed that it contains all the standards. It is clear from the history of the bill that the administration and the commission intended to keep the transitional provision up to date with the debate on the revision of the CPC of March 17, 2023 (see above N. 6).
18 Legal scholars identified an initial norm early on, which is erroneously missing in Art. 407f nZPO. Art. 133 let. d nZPO concerning the summons when using electronic means such as a video conference should be included in Art. 407f nZPO because Art. 407f nZPO contains the remaining provisions for the use of electronic means. In such cases, the catalog of Art. 407f nCPC should be logically extended or an editorial error assumed (also below N. 38). As far as can be seen, no other provision is missing in Art. 407f nCPC (see, for example, below N. 148).
C. Relationship to the transitional law in Art. 404 et seq. CPC
19 When the Federal CPC entered into force on January 1, 2011, Arts. 404–407 CPC contained the transitional law. According to the heading of the corresponding chapter, the provisions only apply when the entire CPC enters into force for the first time and not in the event of further partial revisions (“Transitional Provisions of December 19, 2008”). The first step is to clarify whether Art. 404 et seq. CPC also apply to the revision of the CPC of March 17, 2023 (N. 20). Thereafter, the general transitional provisions used for the present commentary are briefly explained (N. 21 et seq.). For Art. 407 CPC concerning the transitional law in arbitration, please refer to the following commentary (N. 212 and N. 214).
1. Applicability of Art. 404 et seq. CPC
20 It is disputed in legal doctrine whether Art. 404 et seq. CPC also applies to later partial revisions. At first glance, the addition “of December 19, 2008” suggests that the transitional provisions of Art. 404 et seq. CPC only apply to the change from cantonal law to the federal CPC. However, this addition was only added together with Art. 407a CPC. At the time of the introduction of the CPC, Art. 404 et seq. CPC as general transitional provisions. The administration also assumes that Art. 404 et seq. CPC are to be observed in the event of later revisions (see also above N. 4). The general principle, according to which new civil procedural law is to be applied immediately, would be impractical for numerous provisions of the revision of March 17, 2023. For this reason, Art. 407f nCPC contains only those provisions to which this principle applies. If the legislator had assumed that the general provisions of Art. 404 et seq. CPC would not apply, Art. 407f nCPC would be a meaningless provision. According to the general principle, the revised provisions would be immediately applicable to all pending proceedings. Accordingly, Art. 404 et seq. CPC will also be applicable in the event of the revision of 17 March 2023, provided that Art. 407f nCPC does not deviate from it (N. 33 et seq.). For those provisions that are not included in the catalog of Art. 407f nCPC, Art. 404 et seq. CPC, i.e. the general transitional law, applies (see below N. 89 et seq.).
2. General transitional law
a. Continued application of the previous law (Art. 404 CPC)
21 According to Art. 404 para. 1 CPC, the previous procedural law applies to proceedings that are pending when it comes into force until the conclusion before the instance concerned.
22 It is undisputed that the instance is the court of first instance and the cantonal court of appeal. However, the classification of the arbitration authority as an “instance” is disputed. According to the case law of the Federal Supreme Court and the courts of Graubünden, as well as some legal literature, the conciliation authority is not considered a separate instance. The Zurich High Court and another part of the doctrine consider the conciliation authority to be a separate instance. The fact that the new procedural law is being applied as early as possible speaks in favor of the latter view. It should be noted that when the CPC was introduced, the difficulties of various cantonal concepts of lis pendens were argued. This problem no longer arises with the present amendment to the CPC. In my opinion, the conciliation authority should therefore be regarded as a separate instance. This is the best way to implement the principle of the immediate applicability of the new civil procedural law (see above N. 4 and N. 11). The following comments are based on the case law of the Federal Supreme Court. Due to the controversial situation at the outset, the constellation in which the conciliation authority is regarded as an instance is also addressed in some cases (see below N. 163).
23 The Federal Supreme Court considers proceedings before an instance to be concluded if a legally binding decision has been made. If the court of appeal sets aside a decision and refers it back to the lower court for a new decision, the proceedings are not concluded. The proceedings are restored to the state in which they were before the contested decision was made. Therefore, the court of first instance must continue to apply the previous procedural law after the remittal decision, or apply it again (principle of unity of the instance). This also applies if the appeal proceedings were subject to new law (on the appeal proceedings, see N. 28 f.).
b. Amended actions and several actions or petitions in one proceeding
24 In one proceeding, one action or petition is adjudicated. In this case, it is clear that the applicable procedural law, i.e. the old or the new law, is determined on the basis of the pendency of this action or petition. The same point in time can also be used for subjective and objective joinder of claims, because in this case too – thanks to the simultaneous filing of the action in a single statement of claim – the point in time at which all the claims become pending is identical.
25 questions arise in the case of amended and multiple claims in one action whose point in time of becoming pending differs (see above, N. 14). One example is an action that became pending at the end of 2024, and the associated counterclaim that only became pending at the beginning of 2025. Another example would be an additional action subsequently added by means of an amendment to the action. Several actions are treated in the same proceedings, subject to a separation within the meaning of Art. 125 let. b and let. d CPC. It is also questionable how the transition law would deal with the situation if the court combined a claim that had become pending by December 31, 2024, with a claim that had become pending from January 1, 2025, in a different proceeding (see Art. 125 let. c CPC).
26 Regardless of the assessment in the same proceedings, each claim is materially independent. This means that, in principle, a decision is made for each claim as if separate proceedings were conducted for it. In terms of transitional law, this would mean that the old civil procedure law would apply to the claim that became pending before January 1, 2025, provided that the new legal provision is not included in the catalog of Art. 407 et seq. In my opinion, this approach is impractical because the court would have to apply different procedural law to different claims within the same proceedings. Therefore, in my opinion, the applicable law should be determined exclusively on the basis of the lis pendens of the first claim as the starting point of the proceedings. This claim also initiated the proceedings. It should be noted that the court may not use the consolidation of actions to influence the applicable law in the intertemporal aspect. This means that the old procedural law must be applied to a counterclaim that the court has separated from an action that became pending in 2024, despite the counterclaim being pending in 2025. When combining an independent action brought in 2025, the court may not apply the old procedural law to this action simply because the action in the other proceedings was brought in 2024. In this exceptional case, the court must apply separate procedural law to the two actions. If this is impracticable, the court must refrain from combining the actions.
c. Local jurisdiction (Art. 404 para. 2 CPC)
27 Art. 404 para. 2 CPC provides for the principle of favorability for local jurisdiction. Accordingly, local jurisdiction is determined in accordance with the new law as soon as it comes into force. In addition, jurisdiction under the old law remains (perpetuatio fori). Thanks to Art. 404 para. 2 CPC, a lack of jurisdiction under the old law is remedied. According to the prevailing opinion, Art. 404 para. 2 CPC is not applicable to material jurisdiction. In these cases, Art. 404 para. 1 new CPC applies. The provisions on local jurisdiction remain unchanged by the revision. In contrast, there were changes to the provisions on material jurisdiction (see below N. 91 and N. 96 f.).
d. Appeals (Art. 405 CPC)
28 The law in force at the time of the issuance of the judgment (opening statute; Art. 405 para. 1 CPC) applies to the admissibility of the appeal and the appeal proceedings. This includes the right of appeal, the right of complaint, as well as the right of explanation and correction. This includes all decisions, i.e. in particular interim decisions. The appeal on points of law of decisions that have been opened under the previous law is governed by the new law (Art. 405 para. 2 CPC; see below N. 201). The new law also applies to the proceedings to be continued after an appeal on points of law has been granted (so-called renewal proceedings).
29 It is unclear what is meant by the time of issue. In principle, a decision is deemed to have been issued when it has been communicated to the parties orally or in writing. The written operative part, which can be issued without grounds, is used for this purpose. If a decision has been issued in writing to at least one of the parties, the date of posting is used. Otherwise, it is possible that two different dates are decisive because both parties received the decision at a different time. However, if it is established that both parties received the decision after the amendment came into force, the new law applies regardless of the date of posting. Whether a judgment is issued during the judicial vacations is irrelevant for the determination of the legal remedy in accordance with Art. 405 para. 1 CPC. Service during the vacations is only relevant for calculating the time limit for an appeal (see Art. 146 para. 1 CPC). By contrast, Art. 132 para. 1 BGG is based on the date on which the decision was issued (see below N. 80).
D. Excursus: Reflex effect on cantonal administrative procedural law
30 The laws on cantonal administrative justice regularly refer to the provisions of the CPC (e.g. in the taking of evidence) (so-called external references). This raises the question of whether these are static or dynamic references. This must be determined by interpreting the cantonal reference norm. In principle, dynamic references are to be assumed if the cantonal administrative law does not refer to a specific version of the CPC. The uniform application of all procedural laws in the canton also speaks in favor of dynamic references. If dynamic references are present, cantonal law would change without the involvement of the cantonal parliament and, possibly, the cantonal population in a referendum. This argues in favor of static references. In my opinion, however, dynamic references should be assumed in principle.
31 If dynamic references exist, the changes of the revision of March 17, 2023 are also decisive for cantonal law, provided that the cantonal law refers to them in the relevant area, for example in the taking of evidence. This means that interrogations, for example, could be carried out with the new provisions on the use of electronic means (see below N. 38 et seq.). In this case, the transitional question arises as to whether Art. 407f nZPO is also applicable or the transitional law of the cantonal administrative law. In my opinion, the transitional law of the cantonal administrative law is to be relied upon, because the reference to the CPC does not cover the transitional law of an audit. However, it is also conceivable, in particular in the absence of suitable cantonal provisions, to apply Art. 407f nZPO as subsidiary cantonal law. The cantonal individual case is decisive in each case.
32 The provisions of the CPC are deemed to be cantonal law in the cantonal administrative proceedings. The Federal Supreme Court reviews the application of cantonal law only with arbitrary cognizance (see Art. 95 BGG). This means that the Federal Supreme Court can only examine to a limited extent whether cantonal instances rightly applied or did not apply Art. 407f nZPO in the administrative proceedings. The Federal Supreme Court also has only limited scope to review whether a dynamic or static reference is involved, unless there are constitutional concerns about the dynamic reference in an individual case.
IV. Revised law within the scope of application of Art. 407f nZPO
33 This chapter deals with the individual provisions listed in Art. 407f nZPO from a transitional law perspective.
A. Direct action before the higher court (Art. 8 para. 2 second sentence nZPO)
34 According to Art. 8 para. 2 second sentence nZPO, the sole cantonal court is also competent to order precautionary measures before the commencement of the lis pendens. This is a clarification that corresponds to the prevailing view on the applicable law. The only cantonal court is therefore also competent to deal with applications for the issuance of a provisional measure that became pending before January 1, 2025. However, as in the previous law, the consent of the opposing party is required for this (see Art. 8 para. 1 CPC). In particular, in the case of super-provisional measures, there is usually no corresponding consent, which is why the higher court has no jurisdiction.
B. Lis pendens in the absence of jurisdiction and incorrect type of proceedings (Art. 63 para. 1 nZPO)
35 Art. 63 para. 1 nZPO now additionally provides that in the case of a submission forwarded in accordance with Art. 143 para. 1bis nZPO, the date of the first submission shall be deemed to be the date of lis pendens. This also applies to submissions that were erroneously submitted to an incompetent Swiss court before January 1, 2025 and were finally forwarded by that court after January 1, 2025 in application of Art. 143 para. 1bis nZPO ex officio (see below N. 47 et seq.).
C. Free legal aid for the taking of evidence in the form of provisional measures (Art. 118 para. 2 second sentence nZPO)
36 The Federal Supreme Court has so far rejected legal aid in the case of provisional evidence within the meaning of Art. 158 CPC. The legislator has followed the criticism of prevailing doctrine and now states in Art. 118 para. 2 second sentence nZPO that legal aid can also be granted for the provisional taking of evidence.
37 Thanks to Art. 407f nZPO, legal aid can also be granted for proceedings for the taking of evidence that were pending before January 1, 2025. If the proceedings for the taking of evidence have already been concluded, a subsequent application for legal aid is no longer possible. An application for legal aid may be submitted before or after the case becomes pending (Art. 119 para. 1 CPC). Accordingly, it is also possible to apply for legal aid for proceedings for the taking of evidence initiated before January 1, 2025. However, according to Art. 119 para. 4 CPC, free legal aid can only be granted retroactively in exceptional cases. However, the retroactivity mentioned in Art. 119 para. 4 CPC is factual and not intertemporal. This means that the retroactive effect within the meaning of Art. 119 para. 4 CPC applies to expenses incurred in the past and not to a change in the legal situation. Accordingly, in terms of the ratio legis of Article 118, para. 2, second sentence, of the new Code of Civil Procedure, legal aid is also to be granted for costs already incurred because the legislature did not want to grant wealthy persons access to the taking of evidence for the purposes of prevention immediately, i.e. when the new law came into force.
D. Digitalization in civil proceedings
1. Use of electronic means (Art. 141a, f., Art. 170a, Art. 187 para. 1 third sentence, Art. 193 and Art. 298 para. 1bis nZPO)
38 The revision of the CPC of March 17, 2023 introduces various provisions on the use of electronic means for the transmission of sound and images for the purpose of conducting oral procedural acts. With the exception of Art. 133 let. d nCPC concerning the summons, all of these provisions are included in the catalog of Art. 407 et seq. nCPC. With regard to Art. 133 let. d nZPO, the doctrine rightly assumes that this is an editorial mistake on the part of the legislator, because the provisions on the use of electronic means would be meaningless without the simultaneous possibility of a summons (see above N. 18).
39 Conducting oral proceedings by means of electronic audio and video transmission requires, among other things, that all parties agree to it (Art. 141a, para. 1 of the new Code of Civil Procedure in fine). The transmission of the image may exceptionally be waived with the consent of the persons concerned if there is particular urgency or other special circumstances in the individual case (Art. 141b para. 2 nZPO). In my opinion, these consents can be given before January 1, 2025. However, the corresponding oral procedural act may not be carried out until January 1, 2025. In my opinion, the summonses to the procedural acts may already be issued before January 1, 2025. Firstly, consent is only a requirement for the validity of the procedural act and not the procedural act itself. Since the legal basis has been in place since March 17, 2023, the parties know the legal framework to which they are consenting. If the parties wish to await the ordinance issued on the basis of Art. 141b para. 3 CPC, they may provisionally refuse to give their consent (see N. 40 below). Secondly, obtaining consent before 1 January 2025 promotes the expeditious preparation and conduct of proceedings required by Art. 124 para. 1 CPC.
40 The Federal Council regulates the technical requirements and the requirements for data protection and data security in the Ordinance on the Use of Electronic Means for Sound and Image Transmission (VEMZ) (see Art. 141b para. 3 nZPO). Art. 11 VEMZ stipulates that the ordinance also applies to proceedings that are pending when the VEMZ comes into force.
41 Art. 170a nZPO provides for the examination of witnesses by video conference or other electronic means of sound and image transmission. Such examination is already permitted in proceedings that became pending before 1 January 2025 (Art. 407f nZPO). The summons may be issued before 1 January 2025. The above also applies to the examination of parties, the taking of evidence and the oral submission of an expert opinion or the explanation of a written expert opinion in the proceedings, because Art. 187 para. 1 third sentence and Art. 193 nZPO refer to Art. 170a nZPO. The provisions mentioned are also included in the list of Art. 407f. nZPO.
42 The use of electronic means for sound and image transmission during the hearing of a child in family law proceedings remains inadmissible under both the old and the new law (see Art. 298 para. 1bis nZPO).
2. Minutes of recordings (Art. 141b para. 1 let. b, Art. 176 para. 3, Art. 176a, Art. 187 para. 2 and Art. 193 new CCP)
43 The introduction of the use of electronic means also led to regulations concerning the recording of recordings (see Art. 176a ZPO). When electronic means of sound and image transmission are used, a recording is made during the examination of witnesses, the questioning of parties, the giving of evidence and personal hearings. Recording is expressly excluded for the free discussion of the subject matter in dispute and settlement negotiations (see Art. 141b para. 1 let. b nZPO).
44 The previous option of recording by means of tape recording, video or other suitable aids – apart from video conferencing – remains in force (Art. 176 para. 2 and Art. 235 para. 2 CPC). Art. 176a nCPC also applies to the examination of witnesses. The content of Art. 176 para. 3 aZPO is now contained in Art. 176a lit. b and lit. c nZPO. Art. 176a lit. a nZPO now stipulates that the minutes are to be drawn up retrospectively on the basis of the recording. Accordingly, in proceedings that were pending before January 1, 2025, the protocol can be created retrospectively from January 1, 2025 in such cases if the court records the testimony.
45 For the rest of the proceedings, Art. 235 para. 2 CPC applies, according to which statements of a factual nature must be recorded in terms of their essential content if they are not contained in the parties' written submissions. Art. 235 para. 2 CPC makes no reference to Art. 176a nCPC concerning the subsequent recording of testimony. This is a legislative oversight, which is why Art. 176a nZPO also applies in this case. In terms of transitional law, this means that for proceedings that were pending before January 1, 2025, procedural acts such as party and closing submissions that took place after January 1, 2025, may be recorded retrospectively if the court has recorded them.
46 Art. 176a nZPO will also apply from January 1, 2025 to the recording of witnesses in proceedings that were already pending before January 1, 2025. Art. 176a nZPO applies by virtue of reference (Art. 187 para. 2 and Art. 193 nZPO) to the oral submission or written explanation of an expert opinion as well as to the party questioning and evidence.
E. Adherence to deadlines (Art. 143 para. 1bis nZPO)
47 Art. 143 para. 1bis nZPO stipulates that submissions that are submitted in error to a Swiss court that is not competent by the deadline are deemed to have been submitted in good time. Furthermore, the provision states that if another court in Switzerland is competent, the submission is to be forwarded to that court ex officio. This also applies to submissions in proceedings that were pending before January 1, 2025 (see Art. 407f. nZPO). Lis pendens occurs as soon as the action or request is filed (see above N. 13). Consequently, these submissions are to be forwarded from January 1, 2025.
48 Even before Art. 143 para. 1bis nZPO came into force, the Federal Supreme Court considered that the time limit for an appeal is deemed to have been met if the appeal or complaint was submitted to the lower court. In such cases, the lower court must forward the appeal to the competent court of appeal without delay. In such cases, there is no need to wait for Art. 143 para. 1bis nZPO to come into force. The submission is to be forwarded in advance.
49 If several other courts have jurisdiction, the plaintiff should be heard before the referral. In the interests of procedural economy, this hearing or the request for it may, in my opinion, take place before January 1, 2025.
F. Restoration Procedure (Art. 149 nZPO)
50 Art. 149 nZPO expressly provides that the court shall not make a final decision on the reinstatement if the refusal of reinstatement results in the definitive loss of rights. This means that an appeal is possible. The Federal Supreme Court has already introduced a corresponding restriction to Art. 149 aZPO in the event of a definitive loss of rights. Since the legislator did not define the concept of a definitive loss of rights, the previous case law of the Federal Supreme Court is to be assumed (definitive loss of “the action or the means of appeal”). From a transitional law perspective, it is irrelevant whether Art. 149 aZPO or Art. 149 nZPO applies. From a formal point of view, the new version is also applicable to proceedings that were pending before January 1, 2025, thanks to Art. 407f nZPO.
G. Law of Evidence
1. Right to refuse regarding the activity of an internal corporate legal department (Art. 167a nZPO)
51 With regard to the activities of an internal corporate legal department, Art. 167a nZPO provides for a right of refusal in the taking of evidence. Thanks to Art. 407f nZPO, this applies to proceedings that were already pending before January 1, 2025. This may significantly change the parties' prospects of success in court. From a transitional law perspective, various tricky questions arise.
52 It is questionable whether a party and a third party may retroactively invoke the new right of refusal in Art. 167a nZPO as of January 1, 2025. In other words, can a party demand that documents and interrogations already carried out be removed from the files? The fact that the same law should apply to all evidence would seem to suggest so. This idea also arises from Art. 404 para. 1 CPC, according to which the proceedings before the court seized shall be concluded under the same law.
53 On the other hand, there is an argument for an analogous application of Art. 448 para. 2 CrimPC. This provision stipulates that procedural acts that have been ordered or carried out before the entry into force of the CrimPC shall retain their validity. This principle is an expression of the principle of legality, according to which evidence is to be collected in accordance with the law as it stands and cannot be retrospectively rendered inadequate by a change in the law. If Art. 448 para. 2 CrimPC were applied by analogy, documents accepted and statements made before January 1, 2025 would be valid if they were admissible under the old law.
54 By contrast, the analogous application of Art. 448 para. 2 CrimPC is not practicable in civil procedure law. The principle of equal treatment or equality of arms requires that the same law of evidence applies to all parties. Furthermore, different laws of evidence also lead to one party trying to delay the proceedings. It is conceivable that a party could file a motion to postpone the main hearing to a date after January 1, 2025, thereby obtaining the application of Art. 167a nZPO in its favor. Therefore, Art. 167a nZPO should, in my opinion, be applied to the entire proceedings that were pending before January 1, 2025. This means that the right of refusal within the meaning of Art. 167a nZPO must already be observed for previously submitted documents and statements. This also applies in appeal proceedings to evidence taken in the first-instance proceedings.
55 Pursuant to Art. 161 para. 1 CPC, the court shall inform the parties and third parties about the right to refuse, among other things (duty to provide information). From January 1, 2025, the court must therefore draw the attention of parties and third parties to the right of refusal under Art. 167a nZPO and set them a deadline within which they can request that certain documents and statements be disregarded in the judgment. The court's taking cognizance of the documents to be excluded from the proceedings will only constitute a ground for recusal in extreme cases (see Art. 47 para. 1 let. f CPC).
56 If a party pending before January 1, 2025, proceedings in bad faith delayed to still be able to benefit from Art. 167a nZPO, this standard is exceptionally not applicable even after January 1, 2025 (see Art. 52 para. 1 CPC). The opposing party bears the burden of proof for the violation of good faith.
2. Private expert opinion (Art. 177 new CPC)
57 Under the new law, the private expert opinion is considered a document and thus, according to Art. 168 para. 1 let. b CPC, as evidence (Art. 177 new CPC). In this way, the legislator corrected the case law of the Federal Supreme Court, according to which private expert opinions are not considered evidence, but as mere assertions by the parties.
58 Since Art. 177 nZPO is included in Art. 407f nZPO, it is rightly argued that a private expert opinion submitted in proceedings already pending before January 1, 2025 can no longer be dismissed as a mere party assertion as of January 1, 2025. The party that submitted the private expert opinion now offers it as evidence. From January 1, 2025, it will be admissible evidence that the court must accept unless there are other reasons not to (see Art. 152 para. 1 CPC). It is not necessary to resubmit it after January 1, 2025. If necessary, it is advisable to draw the court's attention to the private expert opinion.
59 From a transitional point of view, the question arises as to whether a private expert opinion can be submitted as a genuine novelty after the conclusion of the case from January 1, 2025. For proceedings pending on January 1, 2025, Art. 229 aZPO is decisive (see below N. 171). The definition of (genuine and spurious) novae has not changed (see below N. 169). With regard to the introduction of novae into the proceedings, Art. 229 aZPO is stricter (see below N. 169 et seq. for details). A distinction must be made between private opinions that have already been prepared and those that have yet to be prepared.
60 Genuine novelties only arise after the case has been closed (Art. 229 para. 1 let. a aZPO or Art. 229 para. 2 let. a nZPO). In the case of a private expert opinion that has already been written, it would not be a matter of “actual creation”, but rather, thanks to Art. 177 nZPO, a “legal creation”. In my opinion, the definition of the genuine novum is to be extended in the context of transitional law to the “legal creation”. This also helps to avoid unequal treatment between the parties. If a claimant submitted the reply under the old law, Art. 177 aZPO would be decisive. In contrast, if the defendant submitted the reply after January 1, 2025, Art. 177 nZPO would be applicable, which is why the reply would be allowed to submit a private expert opinion as evidence. In this case, the claimant could also submit a private expert opinion as a genuine novelty.
61 If the private expert opinion has not yet been prepared, this constitutes a genuine novelty due to “actual emergence”. If it could have been prepared earlier, it is a potestative novelty. These are treated like non-genuine novelties. Accordingly, potestative novae are only admissible if they cannot be submitted in advance despite reasonable care (Art. 229 para. 1 let. b aZPO and Art. 229 para. 2 let. b nZPO). It can be argued that the preparation of a private expert opinion was not required under the regime of the old law, which is why the late submission is excusable. In order to give the Contingency Maxim as much effect as possible, parties can be expected towards the end of 2024 to prepare the expert opinion with the entry into force of Art. 177 nZPO on January 1, 2025 in mind and thus not to wait until the beginning of 2025.
62 In the appeal proceedings, Art. 317 para. 1 CPC must be observed with regard to the subsequent submission. According to Tappy, acting without delay requires that the private expert opinion of the respondent in the appeal be submitted before the expiry of the response to the appeal (in particular if the time limit for the response to the appeal runs entirely or mostly in 2025). Since, according to the case law of the Federal Supreme Court, it is sufficient for the novae to be submitted in the statement of appeal or statement of defence, in my opinion this also applies to the private expert opinion. In appeal proceedings, the private expert opinion can no longer be submitted due to the prohibition of novae (see Art. 326 para. 1 CPC).
63 If a party to proceedings pending before January 1, 2025, delays the proceedings in bad faith in order to benefit from Art. 177 nCPC, that provision will exceptionally not be applicable even after January 1, 2025 (see Art. 52 para. 1 CPC; see above N. 56). The opposing party bears the burden of proving a breach of good faith.
H. Conciliation proceedings
64 This section is devoted to the provisions of the conciliation procedure, which Art. 407f nZPO lists. Art. 204, 209 para. 4 and Art. 212 para. 3 nZPO are not among them, which is why these provisions are commented on below in N. 158 et seq.
65 Instead of 'proposed judgment', the term 'proposed decision' will be used from 1 January 2025. This is a terminological adjustment that has no impact on the content. Therefore, there are no transitional legal issues.
1. Exemptions from the conciliation procedure (Art. 198 let. bbis, f, h and i nZPO)
66 Various exceptions to the mandatory mediation requirement have been amended (Art. 198 let. bbis, f, h and i of the new Code of Civil Procedure). These exceptions are included in the list in Art. 407f. of the new Code of Civil Procedure.
a. Maintenance claims and other child-related matters (Art. 198 let. bbis of the new Code of Civil Procedure)
67 The conciliation procedure is not applicable for any claims concerning the maintenance of minor and adult children and all other child-related matters (Art. 198 let. bbis nZPO). According to Art. 198 let. bbis aZPO, the conciliation procedure is only not applicable if one of the parents has already referred the matter to the KESB before filing the action. Therefore, a maintenance claim that was pending before January 1, 2025 and is adjudicated after January 1, 2025 does not require a prior conciliation procedure, even if Art. 198 let. bbis aZPO would have required a conciliation procedure.
b. Disputes within the jurisdiction of a single cantonal authority (Art. 198 let. f nZPO)
68 Art. 198 let. f nCPC now states that the mediation procedure is not applicable to disputes arising from supplementary insurance to social health insurance if a single cantonal instance within the meaning of Art. 7 CPC is responsible for them. This codifies the case law of the Federal Supreme Court, according to which a different treatment of Arts. 5, 6 and 7 CPC is not justified. Therefore, the Federal Supreme Court considered that the conciliation procedure is also no longer applicable to disputes arising from supplementary insurance. Since there is no reason to treat Art. 5, 6 and 7 CPC differently, it is inexplicable to Honegger-Müntener/Rufibach/Schumann why no voluntary conciliation procedure is possible for disputes arising from supplementary insurance. These authors again assume that this is a legislative oversight. It can be assumed, although these authors have not explicitly stated this, that they also consider voluntary arbitration to be admissible for disputes arising from supplementary insurance. Since the wording of the law and the message are clear, it cannot be assumed in my opinion that voluntary arbitration is possible. In addition, the Federal Supreme Court spoke out convincingly against arbitration proceedings under the old law because the arbitration authority lacks the necessary specialist knowledge and because of the decision-making authority within the meaning of Art. 212 CPC, a double cantonal instance arises.
69 Art. 198 let. f of the old CPC provided that the conciliation procedure was not applicable in the case of actions brought before the sole cantonal court within the meaning of Art. 5 CPC and the commercial court within the meaning of Art. 6 CPC. These exceptions were deleted in the new law because an optional mediation procedure was introduced for these actions (see Art. 199 para. 3 new ZPO; see below N. 74 f.). The prevailing doctrine under the old law was that a mediation authority does not have to conduct a mediation procedure if an exception within the meaning of Art. 198 aZPO applies. Instead, it was held that the conciliation authority should issue a decision of non-admission. From January 1, 2025, the conciliation proceedings must be conducted in any case, even if the request for conciliation was submitted in 2024 (see Art. 407f. nZPO). However, this does not apply if the arbitration authority has already issued a decision of non-admission in 2024. In this case, a new application for arbitration must be submitted. If the original lis pendens is to be maintained, the new application for arbitration must be submitted within one month of the decision of non-admission (see Art. 63 para. 1 CPC).
70 According to Art. 135 no. 2 CO, the statute of limitations is interrupted by, among other things, a request for mediation. In this case, lis pendens is decisive (Art. 64 para. 2 CPC). The commercial courts of the cantons of Zurich and Bern are of the opinion that there is no backdating of the lis pendens within the meaning of Art. 63 para. 1 CPC if an action is brought directly before the competent commercial court after the statement of claim has been issued. A decision of non-admission by a court of ordinary jurisdiction that lacks jurisdiction or a withdrawal of the action due to lack of jurisdiction before this court would be required first. Under the new law, conciliation proceedings may be conducted before the commercial court is seised (Art. 198 let. f and Art. 199 para. 3 nZPO a contrario). Therefore, the transitional question arises as to whether the limitation period is interrupted in the case of a request for conciliation submitted before January 1, 2025, if the action is subsequently filed with the commercial court. The interruption of the limitation period would represent a deviation from the commercial court rulings cited in footnote 144. However, in my opinion, the interruption of the statute of limitations does not occur under the new law either. The statute of limitations is a substantive legal institution. Accordingly, the substantive transitional law applies. The legal effects of facts that occurred before the entry into force of this law will continue to be assessed under the old law (principle of non-retroactivity; Art. 1 para. 1 SchlT CC). For this reason, the cited Zurich and Bern commercial court rulings will also be decisive from January 1, 2025 if a complaint is filed directly with the commercial court after the conciliation procedure has been carried out. In addition, according to Art. 49 para. 4 of the Final Provision of the CC, the new law on the statute of limitations will only apply from the date of its entry into force, i.e. in this case on January 1, 2025. The same problem must be solved in the same way for the sole cantonal instance within the meaning of Art. 5 of the CPC. In contrast, in my opinion, voluntary conciliation proceedings are not possible for disputes arising from supplementary insurance (see above N. 68). Therefore, the question at hand does not arise in such disputes.
c. Related actions with a court-set deadline (Art. 198 let. h nCPC)
71 According to Art. 198 let. h nCPC, the mediation procedure now also does not apply to actions that are factually related to an action for which the court has set a deadline (see Art. 263 CPC). This exception to the conciliation procedure applies, among other things, to claims for compensation for work that are to be asserted together with the definitive entry of the construction craftsman's lien. According to the case law of the Federal Supreme Court on Art. 198 lit. h aZPO, claims for compensation for work cannot be asserted without a conciliation procedure.
72 Art. 198 lit. h nZPO is included in the catalog of Art. 407f nZPO. Accordingly, the claim for compensation for work can be raised as early as the end of 2024 together with the claim for definitive entry of the construction craftsman's lien. From January 1, 2025, it will no longer be possible to dismiss the claim for lack of an arbitration procedure with regard to the claim for compensation for work. The courts of jurisdiction will fall apart (e.g. in the case of a jurisdiction agreement for the claim for compensation for work).
d. Actions before the Federal Patent Court (Art. 198 lit. i nZPO)
73 According to Art. 198 let. i CPC, the mediation procedure is not applicable to actions brought before the Federal Patent Court. Even under the old law, legal scholars agreed that actions brought before the Federal Patent Court do not require a mediation procedure. In this respect, there was a legislative oversight due to the fact that the Federal Patent Court did not yet exist when the CPC was enacted. This is evident from the fact that the message on the introduction of the CPC already stated that a corresponding exception was to be provided for when the Federal Patent Court was established. Since Art. 198 let. i nCPC does not introduce any new element, a priori no transitional legal questions arise.
2. Waiver of the conciliation procedure (Art. 199 para. 3 nCPC)
74 A new voluntary mediation procedure is possible for disputes under Art. 5, 6 and 8 CPC (see Art. 199 para. 3 nCPC). Since the mediation procedure is voluntary, Art. 199 para. 3 nCPC stipulates that the plaintiff may file the action directly with the court. Art. 199 para. 3 nZPO is included in the catalog of Art. 407f nZPO. This means that, from January 1, 2025, a voluntary mediation procedure must also be carried out if the request for mediation was submitted before that date and the procedure thus became pending before that date (see above N. 69).
75 According to Art. 8 para. 1 CPC, the claimant may, with the consent of the defendant, apply directly to the higher court if the amount in dispute is at least CHF 100,000. Under the previous law, mediation proceedings had to be conducted before the higher cantonal court could be called upon, although the parties could waive this jointly (Art. 199 para. 1 CPC). Under the new law, if there is an agreement under Art. 8 para. 1 CPC, the plaintiff can decide alone whether or not they wish to go through with conciliation proceedings before appealing to the higher cantonal court (Art. 199 para. 3 nCPC). Due to the inclusion in the catalog of Art. 407 et seq. nCPC, a prorogation in favor of the higher cantonal court within the meaning of Art. 8 para. 1 CPC, which was agreed before January 1, 2025, means that the claiming party can decide independently whether the mediation procedure is waived.
3. Fine for default in the conciliation proceedings (Art. 206 para. 4 nZPO)
76 Now, a defaulting party in the conciliation proceedings can be fined up to CHF 1,000 (Art. 206 para. 4 nZPO). Previously, the Federal Supreme Court ruled that failure to appear at a conciliation hearing constitutes a disruption of business operations or malicious or wilful litigation pursuant to Art. 128 para. 1 and para. 2 CPC. These special qualifying circumstances no longer apply with the entry into force of Art. 206 para. 4 nCPC. The fine must also be threatened under the new law (e.g. in the summons to the conciliation hearing; Art. 147 para. 3 CPC).
77 Thanks to Art. 407f. nCPC, this provision already applies to conciliation proceedings that were pending before January 1, 2025. Accordingly, the conciliation authority may impose an administrative fine as per Art. 206 para. 4 nZPO at the end of 2024 in the summons to a conciliation hearing that takes place after January 1, 2025. If the arbitration authority merely threatens a fine (under the old law) pursuant to Art. 128 para. 1 and para. 3 CPC, the defaulting party may not be subject to the stricter summary fine pursuant to Art. 206 para. 4 nCPC as of January 1, 2025. This is because the corresponding notice is a prerequisite for the new legal fine.
4. Decision proposal (Art. 210 para. 1 let. c nZPO)
78 In order to increase the settlement rate of the conciliation authorities, Art. 210 para. 1 let. c nZPO provides for the possibility of submitting a decision proposal to the parties in the case of other proprietary disputes involving an amount in dispute of up to CHF 10,000. The conciliation authority may also submit corresponding proposals for a decision in proceedings that were already pending before January 1 and are still pending on January 1, 2025 (see Art. 407 et seq. nZPO).
I. Initiation and statement of grounds for cantonal rulings (Art. 239 para. 1, 318 para. 2 and 327 para. 5 new CPC)
79 The CPC revision results in changes concerning the initiation and statement of grounds for rulings. Art. 239 para. 1 of the new Code of Civil Procedure stipulates that the decision of the court of first instance is to be issued without written grounds as a rule and that the decision is to be issued with grounds as an exception. This also applies by analogy to the decision and grounds of cantonal appeal and complaint decisions (Art. 318 para. 2 and Art. 327 para. 5 of the new Code of Civil Procedure). In order to make it possible for the cantonal courts of first instance to issue their rulings without stating reasons, Art. 112 para. 2 BGG also had to be amended. Before January 1, 2025, Art. 112 para. 2 aBGG provided for an exception to the requirement to state reasons only in the case of a cantonal legal basis, which did not include the CPC as federal law. Art. 112 para. 2 nBGG now stipulates that the cantonal court shall issue its decision promptly and without stating reasons, provided that federal or cantonal law so requires. The concept of federal law includes the new Art. 239 para. 1, 318 para. 2 and 327 para. 5 nZPO.
80 The new provisions in the CPC are included in the catalog of Art. 407 et seq. This basically means that the decision in a case that is already pending before January 1, 2025, under the new regulation, must generally be opened (unfounded). In contrast, there is no transitional provision for Art. 112 para. 2 nBGG. In my opinion, this is a legislative oversight, because during the parliamentary deliberations it was not considered that the amendment of other decrees can also have transitional legal effects. The legislature has deliberately decided that Art. 239 para. 1, 318 para. 2 and 327 para. 5 nZPO shall apply to already pending proceedings. The legislative decision cannot be reversed for sole cantonal instances and cantonal appellate courts on the grounds that Art. 112 para. 2 nBGG is not yet applicable to these proceedings. Incidentally, the transitional provision in Art. 132 para. 1 BGG can also be applied by analogy. It stipulates that for the entry into force of the BGG, i.e. on January 1, 2007, the BGG is applicable to appeal proceedings if the cantonal decision was issued on or after January 1, 2007. A decision is deemed to have been issued if it has been issued. The date of issue is therefore not decisive (unlike Art. 405 of the CPC; see above N. 28 f.). This would mean that it can be argued that the new Art. 112 para. 2 nBGG applies if the cantonal decision was issued on or after January 1, 2025. This means that Art. 112 para. 2 nBGG will also apply to proceedings that are already pending as of January 1, 2025.
J. New facts and evidence in appeal proceedings (Art. 317 para. 1bis nZPO)
81 Insofar as the facts of the case are to be investigated ex officio (unlimited investigation maxim), Art. 317 para. 1bis nZPO stipulates that in the appeal proceedings, new facts and evidence can be taken into account up to the deliberation on the judgment. In this way, the legislature codifies the case law of the Federal Supreme Court. Art. 317 para. 1bis nCCP is included in the catalog of Art. 407f nCCP, which is irrelevant, however, because, as mentioned, the case law is codified (see above N. 10). This regulation thus applies, already based on the previous case law, to already pending proceedings.
82 For Art. 229 nZPO concerning the right of appeal in first instance proceedings, see below N. 169 ff.
K. Suspensive effect and enforceability (Art. 315 para. 5, 325 para. 2 and Art. 336 para. 1 and para. 3 nZPO)
1. Enforcement of unfounded judgments
83 Under the old law, there was uncertainty regarding the enforceability of decisions issued without written reasons in accordance with Art. 239 para. 1 aZPO. This uncertainty is resolved by Art. 336 para. 3 nZPO, which stipulates that such decisions are enforceable under the same conditions as a decision issued with written reasons. Since Art. 336 para. 3 nZPO is included in Art. 407f nZPO, this also applies to decisions in proceedings that were already pending on January 1, 2025. This will certainly apply to those decisions that are handed down from January 1, 2025. Decisions that were opened before January 1, 2025 without a statement of reasons are also enforceable from January 1, 2025. Thanks to Art. 407f nZPO, the unfounded decision takes immediate effect under the new law from January 1, 2025. As a result, the court of appeal can decide on the postponement of enforceability before it deals with the appeal or the complaint (Art. 315 para. 5 and Art. 325 para. 2 nZPO; see below N. 87 f.).
84 Art. 112 para. 2 last sentence BGG provides that the decision is not enforceable as long as the time limit for requesting a written statement of reasons has not expired unused or the complete execution of the cantonal decision has been opened. The CPC revision did not adapt this provision. Engler wonders whether this is a legislative oversight. If a legislative oversight is assumed, there is a substantive change. In terms of transitional law, Art. 132 para. 1 BGG can be applied by analogy (see above, N. 80).
2. Appeal against a judgment on the merits
85 Art. 315 para. 3 nZPO stipulates that an appeal against a judgment on the merits always has a suspensive effect. This was already the case under the previous law (Art. 315 para. 3 aZPO). This is merely a linguistic change with no substantive or transitional relevance (see above N. 10).
3. No suspensive effect in the appeal proceedings in the case of the debtor's order and the securing of maintenance (Art. 315 para. 2 lit. c and d nZPO)
86 Art. 315 para. 2 lit. c and d nZPO now stipulate that an appeal against decisions regarding the debtor's instruction and the securing of maintenance has no suspensive effect. Pursuant to Art. 407f nZPO, this change will also apply to pending proceedings as of January 1, 2025. If an appeal is already pending on January 1, 2025, the suspensive effect will no longer apply. In my opinion, the instructed third party must make payment to the maintenance creditor from this point in time, provided that the debtor order has been notified to him. In my opinion, the appeal court should issue the notification in order to ensure that the maintenance claim is quickly enforced by means of a debtor order. From January 1, 2025, the maintenance creditor may also demand that the maintenance debtor provide security for the maintenance.
4. Grant of early enforceability and suspension of the right to appeal by the court of appeal (Art. 315 paras. 4 and 5 and 325 para. 2 nZPO)
87 If the affected party is threatened with a not easily remediable disadvantage, the court of appeal may, upon request, grant early enforceability and, if necessary, order protective measures or the provision of security (Art. 315 para. 4 let. a nZPO). If the affected party is threatened with a disadvantage that cannot be easily remedied, the court of appeal may, upon request, exceptionally postpone enforceability in the cases subject to appeal under Art. 315 para. 2 nZPO and in the case of decisions subject to appeal (Art. 315 para. 4 lit. b and 325 para. 2 nZPO). The court of appeal may decide before the appeal is filed. The order shall lapse without further ado if no statement of grounds for the first-instance decision is requested or the time limit for appeal expires unused (Art. 315 para. 5 and 325 para. 2 nZPO).
88 These provisions apply immediately in all proceedings from January 1, 2025 (see Art. 407f. nZPO). Therefore, in my opinion, the application can be submitted at the beginning of the appeal or complaint period at the end of 2024 and the appellate court will decide on it after January 1, 2025.
V. Revised law outside the scope of application of Art. 407 et seq. nZPO
89 Numerous amended norms are not included in the catalog of Art. 407 et seq. nZPO. Questions of transitional law are to be answered with the help of general transitional law according to Art. 404 et seq. CPC (see above N. 19 et seq.). The solutions developed here, along with the case law of the Federal Supreme Court, assume that the conciliation procedure is not an instance of its own within the meaning of Art. 404 para. 1 CPC (see above N. 22). If the opposite view is taken, it should be noted that in those proceedings in which the action – after the conciliation proceedings have been conducted – is not filed until after January 1, 2025, the new law is already applicable in the court proceedings. It is debatable whether the general transitional law also applies to amendments outside the CPC. In my opinion, this should be affirmed in principle because these provisions are related to the revision of the CPC. However, if the other laws have their own transitional provisions, these must be applied (lex specialis derogat legi generali; see above N. 80 and N. 84 and below N. 154).
A. Actions against the Confederation (Art. 5 para. 1 let. f and Art. 10 para. 1 let. c nZPO)
90 The new law stipulates that the sole cantonal court is only competent for actions against the Confederation with a value in dispute of over CHF 30,000 (Art. 5 para. 1 let. f nZPO). Since the ordinary courts of first instance have jurisdiction for actions involving an amount in dispute of CHF 30,000 or less, Art. 10 para. 1 let. c nZPO has also been amended. It now only contains the local jurisdiction and no longer the functional jurisdiction. In these cases, the conciliation procedure is mandatory (Art. 199 para. 3 nZPO a contrario; see also above N. 74).
91 If before January 1, 2025, an action against the Confederation involving an amount in dispute of up to CHF 30,000 has been brought before the sole cantonal court, the material jurisdiction of the sole cantonal court remains (Art. 404 para. 1 CPC). This is a matter of substantive jurisdiction, which is why Art. 404 para. 2 CPC does not apply (see above N. 27). Accordingly, in the case of an action with a value in dispute of up to CHF 30,000 that was brought by December 31, 2024, it cannot be argued that the ordinary court of first instance is now competent to hear the case. The substantive jurisdiction continues to be assessed according to the old law. This solution makes sense because otherwise the ordinary court of first instance would have to judge a claim for which the mandatory conciliation procedure was not followed (see above N. 90 in fine).
B. Commercial court (Art. 6 paras. 2, 3, 4 and 6 new CCP and Art. 5 para. 3 let. c new PILA)
92 Art. 6 CPC concerning the commercial court has been amended in various ways. Regarding English as the language of proceedings, see below N. 140 f.
1. Commercial disputes (Art. 6 para. 2 new CCP)
93 According to Art. 6 para. 2 let. b new CCP, the amount in dispute must exceed CHF 30,000 or the matter must be a non-pecuniary dispute. In this way, the legislator codified the Federal Supreme Court's case law, according to which the regulation of the type of proceedings takes precedence over that of substantive jurisdiction. For this reason, the commercial court must decline jurisdiction in accordance with the Federal Supreme Court if the simplified procedure is applicable on the basis of a matter as defined in Art. 243 para. 2 or on the basis of a value in dispute of up to and including CHF 30,000 in accordance with Art. 243 para. 1 CPC. Since only the case law of the Federal Supreme Court has been codified, there are no transitional issues (see above N. 10).
94 Art. 6 para. 2 lit. c nZPO now expressly states that the parties must be registered as legal entities in the Swiss commercial register or a comparable foreign register. This is a result of the Federal Supreme Court's case law, according to which a natural person registered as an organ does not fulfill this requirement. Since, according to the Federal Supreme Court, this requirement already applied under the old law, no transitional issues arise (see above N. 10).
95 In contrast, Art. 6 para. 2 let. d nZPO introduces an innovation, at least in part, by deviating from the case law of the Federal Supreme Court. According to Art. 6 para. 2 let. d nZPO, a dispute arising from an employment relationship, under the AVG or from the rental and lease of residential and commercial premises as well as agricultural leases is not commercial law. This means that the Federal Supreme Court's case law no longer applies, according to which the commercial court has jurisdiction in the case of disputes arising from the rent or lease of residential and business premises, unless the simplified procedure is applicable (see Art. 243 para. 2 let. c CPC). Whether the commercial court has jurisdiction in the case of labor disputes has been controversial to date and has not been decided by the Federal Supreme Court.
96 From a transitional point of view, Art. 404 para. 1 CPC applies, according to which the procedural law in force remains applicable until the conclusion of the proceedings before the court or tribunal concerned (see above N. 21 et seq. and N. 89). This is a question of substantive jurisdiction, which is why Art. 404 para. 2 CPC is not applicable (see above N. 27). Accordingly, the existence of a commercial dispute is determined by the law in force at the time of the lis pendens.
97 A rental or lease action that was properly brought before the commercial court under the old law must continue to be judged by the commercial court on the merits even after January 1, 2025. If an action is brought before a regular first-instance (rental) court before January 1, 2025, when it should have been brought before the commercial court, the first-instance (rental) court must issue a decision of non-admission (see Art. 404 para. 1 CPC). The plaintiff cannot invoke the new substantive jurisdiction of the court of first instance (rental court) under the new law because Art. 404 para. 2 CPC is not applicable with regard to substantive jurisdiction (see above N. 27). A new action after the decision to dismiss must be filed with the commercial court within one month, with the date of the first filing being decisive for determining the lis pendens (Art. 63 para. 1 CPC; see above N. 13). Therefore, subject-matter jurisdiction continues to be determined according to the old law. If the action is not submitted to the commercial court within one month, the original lis pendens no longer applies. In this case, the subject-matter jurisdiction of the new law applies, which is why the court of first instance (rental) court or the conciliation authority is responsible for the action.
98 A labor law suit filed by an employee with the commercial court by December 31, 2024, is to be judged by the commercial court if it is considered to be within the jurisdiction of the commercial court under the old law (Art. 404 para. 1 CPC; see above N. 95).
99 If the Federal Supreme Court sets aside the decision of the commercial court and refers the matter back to the commercial court, the latter will continue to have jurisdiction after January 1, 2025 for certain tenancy and, where applicable, labor law disputes that were already pending before January 1, 2025 (see above N. 23).
2. Right to choose the plaintiff (Art. 6 para. 3 nZPO)
100 The plaintiff's choice of forum contained in Art. 6 para. 3 nZPO has been adapted to Art. 6 para. 2 nZPO. Where only Federal Supreme Court case law has been codified, there are no transitional problems (see already above N. 10 and N. 93 f.).
101 Since rental and labor disputes will not be considered commercial disputes as of January 1, 2025, the plaintiff's choice of forum can no longer be exercised for such disputes from that point on. If it has been exercised before, the commercial court remains competent (see above Art. 404 para. 1 CPC; above N. 21 et seq.). However, this only applies if jurisdiction was not already excluded under the old law (for more details, see above N. 95 et seq.).
3. International commercial disputes (Art. 6 para. 4 lit. c nZPO and Art. 5 para. 3 lit. c nIPRG)
102 Art. 6 para. 4 lit. c nZPO provides that the cantons may also declare the commercial court to have jurisdiction over international commercial disputes that cumulatively fulfill the following conditions: (i) business activities of at least one party are affected, (ii) the amount in dispute is at least CHF 100,000, (iii) the parties agree, and (iv) at the time of the agreement, at least one party is domiciled, habitually resident or has its registered office abroad. Cantons without a commercial court may set up an independent judicial chamber for international commercial disputes within their higher court within the meaning of Art. 8 CPC. In both cases, such a court may only refuse its jurisdiction if cantonal law provides for this (Art. 5 para. 3 let. c nIPRG). The Cantons of Bern, Zurich and Geneva are planning to set up such an international commercial court. Legal scholars have rightly pointed out that a large number of these disputes already fall under Art. 6 para. 2 nZPO.
103 From the perspective of transitional law, the question arises as to whether the parties can agree on their agreement before the cantonal implementing provisions come into force (see Art. 6 para. 4 let. c no. 3 nZPO). Since this is an aspect of the legislative sovereignty of the cantons, cantonal (transitional) law is primarily relevant. In the absence of such, the transitional provisions of the CPC shall apply. This consent is not an agreement on the choice of court, as it does not stipulate local jurisdiction. Therefore, Art. 406 CPC is not (analogously) applicable to substantive jurisdiction. In my opinion, Art. 407 para. 1 CPC is to be applied by analogy. According to this provision, the validity of arbitration agreements in the context of the transitional law is assessed according to the more favorable law (principle of favorability; in dubio pro arbitrato). The international commercial court is an alternative to arbitration. The parties should be able to choose this alternative to the same extent as arbitration. Therefore, an agreement under which the international commercial court is to have jurisdiction is possible even before the cantonal implementing legislation comes into force. The question is what happens if the cantonal implementing legislation for international commercial disputes has not yet come into force, but the dispute has already arisen. Since a large number of disputes already fall under Art. 6 para. 2 nZPO, the commercial court can usually be called upon without any problems. Otherwise, in my opinion, a party cannot be denied the right to call upon another court, for example to interrupt the statute of limitations, if the cantonal implementing legislation comes into force with unreasonable delay for the respective party. It is recommended that the agreement already provide for a corresponding solution, i.e. an alternative court.
4. Joinder of parties (Art. 6 para. 6 nZPO)
104 According to Art. 6 para. 6 nZPO, the ordinary court has jurisdiction in the case of actions brought by several parties to the dispute who are not all registered as legal entities in the commercial register or in a comparable foreign register (attraction of jurisdiction). The ordinary court already has jurisdiction in these cases under the applicable cantonal law and cantonal court practice. The Federal Supreme Court prohibited a transfer of jurisdiction in favor of the commercial courts. Accordingly, Art. 6 para. 6 nZPO does not change the legal situation. Therefore, no transitional issues arise (see above N. 10).
C. Discovery of the ground for recusal (Art. 51 para. 3 and 328 para. 1 lit. d nZPO)
105 According to Art. 51 para. 3 nZPO, the provisions on revision only apply if the ground for recusal, which was only discovered after the conclusion of the proceedings, cannot be asserted with any other legal remedy. With the primacy of the other legal remedy, i.e. the appeal or the complaint, the legislator codified the case law of the Federal Supreme Court. In addition, the discovery of a reason for recusal after the conclusion of the proceedings was added to the list of conclusive grounds for revision in Art. 328 para. 1 CPC. Here too, the prerequisite is that no other legal remedy is available (Art. 328 para. 1 let. d nCPC). The newly introduced let. d is thus merely a completion of the previously incomplete catalog. As this is a codification of the previous case law, there are no transitional issues (see above N. 10).
D. Incorrect instructions on rights of appeal (Art. 52 para. 2 nZPO)
106 Art. 52 para. 2 of the new CPC stipulates that incorrect instructions on the right of appeal are effective vis-à-vis all courts to the extent that they favor the party invoking them. The purpose of this provision is to prevent a party from incurring disadvantages. However, it is not intended to allow new or different legal remedies than those provided for in the CPC. If an unenforceable decision contains information on the right of appeal, this circumstance should be taken into account in the decision of the court of appeal not to hear the case (e.g. with regard to the cost consequences). What is new is that parties represented by an attorney are also protected against incorrect information on the right of appeal. Several votes in parliament emphasize that Art. 52 para. 2 nZPO is also applicable to parties represented by an attorney. Clear errors remain reserved (e.g. in the case of obvious misspellings such as an appeal period of 3,000 instead of 30 days). Previously, the Federal Supreme Court generally considered that the party represented by a lawyer should have recognized the incorrect appeal instruction.
107 It is questionable whether the Federal Supreme Court's case law on incorrect instructions on the right of appeal should be corrected before the revision of March 17, 2023, comes into force. In connection with the appeal against detention under Art. 222 CrimPC, the Federal Supreme Court considered that the legislature – aware of the Federal Supreme Court's case law – had clearly spoken out against a right of appeal for the public prosecutor's office against decisions on the ordering, extension and lifting of pre-trial or preventive detention, and had thus not adopted the Federal Supreme Court's case law. This is a rare case in which the legislature has stated that, contrary to the view of the Federal Supreme Court, there is no legislative oversight, but that a right of appeal for the public prosecutor's office is not actually desired. On the basis of this better understanding, according to which the public prosecutor's right of appeal cannot be based on the CrimPC, the Federal Supreme Court returned to its practice, which it had recognized as incorrect, and adapted it on its own initiative before the entry into force of the new Art. 222 CrimPC. In my opinion, such a case does not exist in the case of incorrect instructions on the right of appeal. Art. 52 para. 2 nZPO is a new norm. In contrast, Art. 222 CrimPC was already enshrined in the CrimPC and the new case law of the Federal Supreme Court merely led to the already applicable legal text being implemented.
108 From a transitional law perspective, the question arises as to when lawyers can also invoke incorrect instructions on rights of appeal. Art. 52 para. 2 nZPO is not included in Art. 407f nZPO. Since Art. 52 para. 2 nZPO has an impact on the right of appeal, Art. 405 para. 1 CPC is applicable under transitional law. Accordingly, the law in force at the time of the opening of the first-instance decision applies (see above N. 29). Lawyers can therefore rely on incorrect instructions on rights of appeal in those decisions that are handed down from January 1, 2025. This also applies to proceedings that were already pending before January 1, 2025.
109 According to Art. 49 BGG, the parties must not suffer any disadvantage as a result of the decision not being properly notified. This includes, in particular, incorrect or incomplete information on the right of appeal and the absence of information on the right of appeal (see Art. 49 BGG). This provision applies to appeals to the Federal Supreme Court. Honegger-Müntener/Rufibach/Schumann take the view that this norm should also be applied more generously in the future to parties represented by lawyers. If this view is correct, the question arises under transitional law from which point in time female lawyers will also benefit from the protection of Art. 49 BGG. Art. 132 para. 1 BGG can be applied analogously in this regard. Accordingly, the BGG applies to appeal proceedings if the contested decision was made after the BGG came into force (see above, N. 80). Article 49 BGG is therefore to be applied more generously to decisions made after January 1, 2025.
E. Right of reply (Art. 53 para. 3 nZPO)
110 The right to reply is now expressly enshrined in Art. 53 para. 3 of the new Code of Civil Procedure (nZPO). According to Art. 53 para. 3 nZPO, the parties may comment on all submissions of the other party. The court sets them a deadline of at least ten days for this purpose. This can be extended as a court deadline in accordance with Art. 144 of the Code of Civil Procedure (CPC). If the deadline is not met, it is assumed that the parties have waived their right to reply. Under the old law, the Federal Supreme Court provided that the parties could simply be served with the submissions without the court having to set a formal deadline. There had to be sufficient time between the submission of the submission and the issuance of the decision to allow the party to submit its response. If the party that received a submission without a deadline being set and wanted to comment on it, it had to do so immediately or at least request an extension. Otherwise, the Federal Supreme Court assumed that the party waived the right to make a further submission.
111 Art. 53 para. 3 nZPO is not included in Art. 407f. nZPO, which is why Art. 404 f. CPC apply (see above N. 20 et seq.). For proceedings that were pending on January 1, 2025, the previous case law continues to apply (see Art. 404 para. 1 CPC). The previous law does not preclude the setting of deadlines. This means that courts can set deadlines regardless of the date of lis pendens. This considerably simplifies the day-to-day work of the courts, as they issue numerous orders on a daily basis and do not have to check the lis pendens. In appeal proceedings, Art. 53 para. 3 nCPC is applicable provided that the judgment was handed down on or after January 1, 2025 (see Art. 405 para. 1 CPC; supra N. 29).
F. Simple joinder of parties (Art. 71 nCPC)
112 Art. 71 nZPO has been reformulated and restructured, but no changes have been made to the content. Art. 71 para. 1 lit. c nZPO stipulates that in the case of simple joinder of parties, the same court must have material jurisdiction. This codifies the previous case law of the Federal Supreme Court. In the absence of substantive changes, no transitional legal issues arise (see above N. 10).
G. Third-party proceedings (Art. 81 and Art. 82 para. 1 nZPO)
113 All the requirements for third-party proceedings are now contained in Art. 81 para. 1 nZPO. Art. 81 para. 1 lit. a nZPO now stipulates that the claims must be factually connected to the main action. This is intended to make it clear that, in addition to (potential) recourse claims, warranty and indemnity claims can also be asserted by means of a third-party notice action. This was already undisputed under the previous law. The requirement of substantive jurisdiction has so far been derived from the case law of the Federal Supreme Court and is now explicitly codified (see Art. 81 para. 1 lit. b nZPO). Art. 81 para. 1 let. c nZPO stipulates that both the main action and the third-party action are to be assessed in the ordinary proceedings. Art. 81 para. 3 of the old Code, according to which third-party proceedings were inadmissible in simplified and summary proceedings, was deleted because it would have been redundant with Art. 81 para. 1 let. c of the new Code. The Federal Supreme Court and prevailing opinion already required that both actions be subject to the ordinary procedure. In this regard, in the absence of substantive changes, there are no transitional issues (see above N. 10).
114 The addition of the words “[claims] that it fears from the person summoned to the dispute” expressly provides in the new law that the third-party action can also be a negative declaratory action (Art. 81 para. 1 nZPO). The prevailing doctrine rightly affirmed this under the previous law. In contrast, Göksu rejects the negative declaratory action as a third-party action under the previous law. Only if one follows Göksu, the question arises from a transitional law perspective as to when a negative declaratory action can be filed as a third-party action. If the main action was already pending before January 1, 2025, the third-party action can only be judged in the same proceedings if it is admissible under the old law (Art. 404 para. 1 CPC). According to Göksu, the action for negative declaratory judgment is inadmissible, which is why it would not be admissible. This regulation also makes sense if one agrees with Göksu (quod non). As a result, it is foreseeable for the plaintiff when raising his claim which third-party actions brought by the defendant can also be assessed in the same proceedings.
115 If the relief sought in the third-party action concerns the same performance as that to which the third-party is obliged in the main proceedings, these do not have to be quantified (Art. 82 para. 1 nZPO in fine). Accordingly, recourse actions do not have to be quantified in the application for admission. This avoids the risk of the party giving notice of the action bringing an action for recourse that is too broad or too narrow, which can also lead to cost consequences if the action is too broad. For proceedings or main actions that were pending before January 1, 2025, the previous law applies (see Art. 404 para. 1 CPC). Accordingly, in these proceedings, a recourse action, as provided for under the previous law, must also be quantified from January 1, 2025. There is no indication of a legislative oversight. Art. 82 para. 1 nZPO was already included in the draft, which is why it cannot be assumed that this provision was inadvertently not integrated into Art. 407f nZPO. Moreover, it is clear from the commission minutes that Art. 82 para. 1 nZPO in fine is one of the provisions of procedural coordination that were expressly not intended to be included in Art. 407f nZPO (see also above N. 4).
H. Setting of a time limit for the quantification of an unquantified claim (Art. 85 para. 2 nZPO)
116 The previous law did not specify a time limit for subsequently quantifying an unquantified claim. A time limit for subsequent quantification by the court is now provided for (Art. 85 para. 2 nZPO). The court must set a time limit for quantifying the claim after the conclusion of the evidence proceedings or after the parties or third parties have provided information. Case law has denied the court's obligation to set a deadline, at least in the case of parties represented by lawyers. Some scholars advocated a court deadline.
117 Since there is no evidence of an editorial error, according to which the insertion of Art. 85 para. 2 nZPO in Art. 407f nZPO was forgotten, the general transitional law is applicable. Therefore, in proceedings that were suspended before January 1, 2025, the plaintiff may not rely on the court setting a deadline for the quantification of the claim (see Art. 404 para. 1 CPC; supra N. 21 et seq.).
I. Objective joinder of claims (Art. 90 para. 2 nZPO)
118 Art. 90 para. 2 nCPC provides that objective joinder of claims is also admissible if a difference in substantive jurisdiction or type of proceedings is based solely on the amount in dispute. This codifies the Federal Supreme Court's case law, according to which the admissibility of objective joinder of claims is based on the amount in dispute pursuant to Art. 93 CPC. However, the objective joinder of claims is excluded if the different types of proceedings are based on the nature of the individual claims (e.g. protection against termination under tenancy law within the meaning of Art. 243 para. 2 let. c CPC with pecuniary claims of more than CHF 30,000, which would be assessed in the ordinary proceedings). In a recent decision, the Zurich Commercial Court considered that in the event of an objective aggregation of claims, only the amount in dispute of the main claim was decisive because the amount in dispute of the alternative claim was not added in accordance with Art. 91 para. 1 CPC. The commercial court therefore admitted the possible objective aggregation of claims, although the amount in dispute of the alternative claim was less than CHF 30,000. In the absence of a substantive change, no transitional issues arise (see above N. 10).
119 If different procedural types are applicable for the individual claims, they are assessed together in the ordinary procedure in accordance with Art. 90 para. 2 nZPO. In this way, the legislator makes it clear, on the one hand, that there is no mixing of different procedural types. In addition, it follows from the legislative history that individual provisions of the simplified procedure are not applied in the ordinary procedure. If one were to assume the opposite of the view presented here – contrary to the view presented here – the previous law still applies to those proceedings that were already pending before January 1, 2025 (see Art. 404 para. 1 CPC; above N. 21 et seq.).
120 The Federal Supreme Court left open the question of whether there must be an objective connection between the accumulated claims. The legislator implicitly decided against it because this requirement – despite being mentioned in the preliminary draft – was not included in the final version. If this requirement is assumed under the current law, an objective connection would have to be examined for the proceedings that had already become pending before January 1, 2025 (see Art. 404 para. 1 CPC; supra N. 21 et seq.).
J. Amount in dispute and costs law
121 The amendments in the area of the amount in dispute and costs law are not included in Art. 407 et seq. nZPO. Accordingly, for proceedings that were already pending on January 1, 2025, the previous costs law applies until the conclusion before the instance concerned (see Art. 404 para. 1; above N. 21 et seq.). For the determination of court costs and party compensation in the decision-making procedure before the conciliation authority in accordance with Art. 212 para. 3, see below N. 164 f.
1. Amount in dispute in the case of a negative declaratory counterclaim (Art. 94 para. 3 nZPO)
122 If the main action is a partial action, the procedural costs are calculated according to Art. 94 para. 3 nZPO solely on the basis of the amount in dispute of the main action. This limits the plaintiff's risk of procedural costs if the defendant files a counterclaim for a negative declaration. The wording, which also covers other counterclaims in the case of partial actions, is to be restricted teleologically, since the legislature only wanted to reduce the cost risk there. The higher amount in dispute of the counterclaim for a negative declaration is therefore not decisive. Thus, the defendant who raises the counterclaim does not bear any additional legal costs risk. Meanwhile, the party compensation is also calculated only on the basis of the amount in dispute of the partial claim.
123 In proceedings with a partial claim and a negative declaratory counterclaim that were already pending on January 1, 2025, the previous law applies (see Art. 404 para. 1; above N. 21 et seq.). It is questionable whether this also applies if only the partial claim was pending and the counterclaim for a negative declaration only becomes pending after January 1, 2025. This case arises if the statement of defense with a counterclaim for a negative declaration is abandoned after January 1, 2025. In my opinion, Art. 94 para. 3 nZPO is not applicable in this constellation. This main action was already pending under the previous law, which is why the previous law continues to apply based on Art. 404 para. 1 CPC (see N. 26 above). Since the other changes regarding the amount in dispute and the law on costs are also not included in Art. 407f nCPC (see above N. 121), it cannot be assumed that Art. 94 para. 3 nCPC was inadvertently not included in the catalog of Art. 407f nCPC.
124 Art. 94 CPC also applies in appeal proceedings. If the judgment in the proceedings concerning the partial claim is handed down after January 1, 205, Art. 94 para. 3 nCPC applies to the appeal proceedings (Art. 405 para. 1 CPC; supra N. 28 f.). This is a new instance (cf. Art. 404 para. 1 CPC; supra N. 22).
2. Representative actions (Art. 94a new CPC)
125 Under the current law, in the case of negatory representative actions within the meaning of Art. 89 CPC, the court sets the amount in dispute based on Art. 91 para. 2 CPC if the parties are unable to agree on it or if the information provided is manifestly incorrect. In doing so, the court based its decision on the collective interests of the persons concerned. Article 94a nZPO therefore provides that the court shall set the amount in dispute at its discretion if the parties are unable to agree on it or if the information provided is obviously incorrect. In doing so, the court must take into account the interests of the individual members of the group concerned and the significance of the case, in accordance with the message.
126 Negatory class actions that were already pending before January 1, 2025, do not benefit from Art. 94a nZPO. Since Art. 94a new CPC also applies in appeal proceedings, this provision is also applicable in appeal proceedings for class actions already pending before January 1, 2025, if the first instance decision was issued on or after January 1, 2025 (Art. 405 para. 1 CPC; see above N. 28 f.).
3. Tariffs and entitlement to representation (Art. 96 nZPO)
127 For reasons of clarity and transparency, Art. 96 para. 1 nZPO expressly reserves the regulation of fees under Art. 16 para. 1 SchKG to the cantons' authority over tariffs. Under the old law, Art. 16 SchKG was already considered a lex specialis to the CPC, which is why court costs were determined in accordance with Arts. 48 and 61 GebV SchKG. In the absence of substantive changes, Art. 96 para. 1 nZPO does not give rise to any transitional problems (see above N. 10).
128 Art. 96 para. 2 nZPO provides that the lawyer has an exclusive claim to the fees and expenses awarded as party compensation. Such regulations (so-called distraction des dépens) exist in French-speaking Switzerland. In the Canton of Vaud, a corresponding norm still exists today in Art. 47 para. 1 LPAv (“L'avocat a un droit personnel exclusif aux honoraires et débours qui sont alloués par le jugement ou l'arrêt à titre de dépens, sous réserve de règlement de compte avec son client.”). Under the previous law, this standard is not applicable due to the primacy of federal law (see Art. 49 para. 1 FC).
129 From a transitional law perspective, the question arises as to when cantonal legislation within the meaning of Art. 96 para. 2 nCPC applies. When the CPC was enacted, the transitional law for areas within the cantonal jurisdiction fell within the legislative sovereignty of the cantons. If there is no legislation, an analogous application of Art. 404 f. CPC. However, with regard to Art. 96 para. 2 nZPO, the federal transitional law applies, i.e. Art. 404 f. CPC, because this area will only fall under the jurisdiction of the cantons with the revision of March 17, 2023. Previously, there was no possibility of distraction de dépens under federal law. Accordingly, the previous federal civil procedural law applies to proceedings that are pending when such a regulation comes into force, which is why lawyers in these proceedings have no exclusive claim to the fees and expenses that apply as party compensation. For the appeal proceedings, the cantonal regulation concerning a distraction de dépens applies if the first-instance decision was opened after the cantonal regulation came into force (Art. 405 para. 1 CPC; see above N. 29). In the canton of Vaud, Art. 47 para. 1 LPAv can be reactivated. This means that from January 1, 2025, a cantonal regulation within the meaning of Art. 96 para. 2 nZPO will exist in the canton of Vaud.
4. Advance on costs (Art. 98 nZPO)
130 Pursuant to Art. 98 nZPO, the court may demand an advance payment from the claimant up to the amount of the presumed court costs. Art. 98 para. 1 nZPO stipulates that the court may demand a maximum of half of the presumed court costs. This is intended to make it easier to enforce a claim. Art. 98 para. 2 nCPC provides for the following exceptions to the principle in Art. 98 para. 1 nCPC: (i) international commercial disputes within the meaning of Art. 6 para. 4 lit. c nCPC (see above N. 102 f.) and direct actions before the higher court within the meaning of Art. 8 CPC, (ii ) conciliation proceedings, (iii) summary proceedings with the exception of provisional measures and family disputes under Articles 271, 276, 302 and 305 CPC and (iv) appeal proceedings. In all exceptions, the court may – as under the previous law – demand an advance payment of up to the total amount of the presumed court costs (Art. 98 para. 2 nCPC).
131 In the case of proceedings that were already pending on January 1, 2025, the previous law applies in accordance with Art. 404 para. 1 CPC (see above N. 20 et seq.). Accordingly, the portion that exceeds half of the advance on costs will not be reimbursed. Jent-Sørensen mentions that the appeal could already have “advance effects” because the advances on costs would have to be set lower beforehand. She is also right to mention that there is no entitlement to this.
132 Since an advance payment of up to the amount of the presumed court costs can still be requested for appeal proceedings, it is irrelevant with regard to the advance payment of costs whether the appeal proceedings are subject to the previous or the new law (Art. 98 para. 2 let. d nZPO; see above N. 10).
5. Principles for the allocation of costs in the event of multiple parties (Art. 106 para. 3 nCPC)
133 Art. 106 para. 3 CPC governs the allocation of procedural costs in the event of several main and/or secondary parties. Art. 106 para. 3 sentence 1 of the new CCP specifies that the court shall determine the share of the legal costs “in proportion to their participation”. This is merely a clarification and does not constitute a substantive change. Therefore, no transitional issues arise with regard to Art. 106 para. 3 sentence 1 of the new CCP (see above N. 10).
134 Art. 106 para. 3 sentence 2 nZPO will in future only allow joint and several liability in the event of a necessary joinder of parties. Under the previous law, the court could also rule on joint and several liability in the event of a simple joinder of parties (Art. 106 para. 3 aZPO). This reduced the high risk of legal costs in the event of (larger) joinder of parties in mass damage cases. Art. 106 para. 3 aCPC (Art. 404 para. 1 CPC; supra N. 21 et seq.) applies to proceedings that were already pending on January 1, 2025. Art. 106 CPC also applies in appeal proceedings. Accordingly, if the first-instance decision was issued on or after January 1, 2025, the new law applies in the appeal proceedings (Art. 405 para. 1 CPC; above N. 28 f.). If the court of appeal leaves the allocation of the costs of the appeal proceedings to the lower court in the remittal decision, in my opinion the lower court must also apply Art. 106 para. 3 nZPO when allocating the costs of the appeal proceedings. This also applies if the lower court in turn has to apply the previous law to its own proceedings (see above N. 23). This is because the procedural costs of the appeal proceedings are not an aspect of the first-instance proceedings, which is why the previous law does not apply to them.
6. Liquidation of procedural costs (Art. 111 paras. 1 and 2 nZPO)
135 Under the old law, the prevailing plaintiff bore the collection and insolvency risk for the court costs, in that the advances he had made were offset against the court costs (Art. 111 para. 1 aZPO). The unsuccessful defendant liable for costs had to pay the advances made to the successful plaintiff (Art. 111 para. 2 aZPO). Under the new law, the costs advance paid by the claimant can only be offset if the claimant loses the case (at least in part). Otherwise, the advance must be refunded and the court must collect the court costs from the defendant (Art. 111 para. 1 nZPO). This means that the collection and insolvency risk will in future lie with the canton.
136 For those proceedings that were pending on January 1, 2025, the cantons will continue to benefit from the previous law, i.e. Art. 111 aCPC (Art. 404 para. 1 CPC; supra N. 21 et seq.). Art. 111 CPC also applies in appeal proceedings. If the first instance judgment was handed down on or after 1 January 2025, Art. 111 nCPC applies in the appeal proceedings (Art. 405 para. 1 CPC; see above N. 28 sq.).
7. Advance on court costs and security for acts of judicial assistance (Art. 11b nIPRG)
137 Art. 11b PILA concerns the advance for presumed court costs and the security for a possible party compensation in the event of legal assistance in civil matters to be carried out in Switzerland. The reference in Art. 11b nPILA continues to be made to the CPC, with only the abbreviation being used instead of the full reference with date. It is therefore only an editorial adjustment. In the absence of a substantive change, there are no transitional issues here (see above N. 10). In practice, it should be noted that various international treaty provisions take precedence over the CPC.
K. Language of proceedings (Art. 129 para. 2, 251a para. 2 and 356 para. 3 sentence 2 nZPO and Art. 42 para. 1bis nBGG)
1. Ordinary civil proceedings (Art. 129 para. 2 let. a nZPO)
138 From January 1, 2025, cantonal law may provide that a different national language be used at the request of all parties (Art. 129 para. 2 let. a nZPO). These are national languages that have not already been designated as official languages in the relevant court region. Neither party may waive the official language of the competent canton within the meaning of Art. 129 para. 1 CPC before the dispute arises. A statement of defence in the same national language as the statement of claim, which was itself written in an official language other than those referred to in Art. 129 para. 1 CPC, is to be regarded as implied consent by the defendant to the plaintiff's claim (“Einlassung”).
139 The cantons are autonomous within the framework of Art. 129 para. 2 nZPO with regard to the admission of other national languages as procedural languages. Accordingly, the cantons may also create a transitional legal provision. However, cantonal regulations that are applicable to proceedings already pending on January 1, 2025 would be inadmissible. This is because previously, under the Federal Code of Civil Procedure, there was no cantonal competence (see also above N. 129). Otherwise, Art. 404 para. 1 CPC applies, according to which proceedings that are already pending when the cantonal regulation comes into force are to be continued under the previous law (above N. 21 et seq.). If a first-instance judgment was handed down after the cantonal regulation came into force, the parties may request another national language in the appeal proceedings (Art. 405 para. 1 CPC; supra N. 28 f.).
2. International commercial disputes (Art. 129 para. 2 let. b nCPC)
140 In international commercial disputes within the meaning of Art. 6 para. 4 let. c nZPO before the commercial court or the ordinary court, the parties may, if permitted by cantonal law, agree to use English as the language of the proceedings (Art. 129 para. 2 let. b nZPO). In contrast to Art. 129 para. 1 let. a nZPO, a prior waiver of the official language is also permissible. Therefore, the parties can already stipulate (in the choice of court agreement) that English be the language of the proceedings. In this case, the choice of court agreement is to be qualified as a request by the parties. Likewise, the defendant may implicitly consent to the plaintiff's application by using English in the statement of defense (“Einlassung” – statement of defense).
141 From a transitional law perspective, the same applies as stated in N. 139 regarding Art. 129 para. 2 let. a nZPO. Accordingly, it must be determined in each case whether a cantonal transitional provision exists. The choice of English as the language of proceedings can – subject to any cantonal law to the contrary – be made even before the cantonal regulation within the meaning of Art. 129 para. 2 let. b nZPO comes into force. This allows the principle to be realized that new procedural law is generally applicable immediately (see above N. 4 and N. 11). In addition, this strengthens the autonomy of the parties. Finally, it should be noted that the question of English as the language of proceedings does not arise in appeal proceedings because the commercial court or the higher court has final and binding authority in international commercial disputes (Art. 6 paras. 1 and 8 para. 2 CPC).
3. Arbitration (Art. 251a ZPOa para. 2 and 356 para. 3 sentence 2 nZPO)
142 In summary proceedings under national and international arbitration law, cantonal law may provide that English be used as the language of the proceedings at the request of all parties, provided that English is used for the arbitration agreement or clause or as the language of the proceedings in the arbitration (Art. 251a para. 2 and Art. 356 para. 3 sentence 2 nZPO). Since appeals and revisions against arbitral awards are excluded from the scope of the summary proceedings, in my opinion, cantonal law cannot provide for English as the language of proceedings in these proceedings (see Art. 356 para. 3 in conjunction with para. 1 lit. a CPC). This follows, on the one hand, from the systematic position of Art. 251a CPC in Title 5 of the CPC on summary proceedings. On the other hand, appeals and applications for review are more extensive proceedings, which is why a cantonal court requires more expertise and resources to conduct them in English. Therefore, in my opinion, it can be assumed that the legislature did not want to grant the cantons this option.
143 From a transitional point of view, the same applies as stated in N. 139. Of course, Art. 251a para. 2 and Art. 356 para. 3 sentence 2 nZPO also apply to summary proceedings whose associated arbitration agreement or clause was concluded before the cantonal provision came into force. Since a request from all parties is required in any case, only one additional option is provided. This does not result in any disadvantages for the parties to the arbitration proceedings.
4. Proceedings before the Federal Supreme Court (Art. 42 para. 1bis nBGG)
144 If the lower court in a civil matter conducted the proceedings in English, the legal documents in the proceedings before the Federal Supreme Court may be drafted in English (Art. 42 para. 1bis BGG). However, the Federal Supreme Court conducts the proceedings in an official language (Art. 54 para. 1 BGG). It is rightly proposed that in the case of English-language decisions, an official language of the cantonal court of lower instance should be used because the Federal Supreme Court opens its judgment to the cantonal court of lower instance.
145 In terms of transitional law, Art. 132 para. 1 BGG (by analogy) is applicable (see above N. 80 for details). If the cantonal judgment was rendered after January 1, 2025, Art. 42 para. 1bis nZPO applies as new law. In this case, the parties may submit their written submissions in English.
L. Content of the summons (Art. 133 let. d nZPO)
146 Art. 133 let. d nCCP was enacted in connection with the use of electronic means (see above N. 38 et seq.). When electronic means are used to transmit sound and images, the summons must indicate the required availability. Since all provisions on the use of electronic means are contained in Art. 407f. nCCP, this is likely to be an editorial oversight. Art. 133 lit. d nZPO will therefore also apply from January 1, 2025 in all proceedings, although summonses to the corresponding procedural acts may already be issued before January 1, 2025. In this regard, reference is made to the comments above in N. 18 and N. 38 et seq.
M. Start of the time limit for A Mail Plus (Art. 142 para. 1bis new CPC)
147 Art. 142 para. 1bis new CPC concerns “other mail” within the meaning of Art. 138 para. 4 CPC, i.e. not summonses, orders and judgments. The latter are served by registered mail or in some other manner against receipt (Art. 138 para. 1 CPC). These items are delivered by means of A Mail Plus. There is no receipt by the recipient. However, there is a tracking option until the letter is dropped in the letterbox or P.O. Box. Under the previous law, a period of time begins on Saturday when a delivery is made by A Mail Plus (see Art. 142 para. 1 CPC). If the letterbox or P.O. box is emptied after the weekend, this is not readily apparent. To do so, the label “A+” would have to be scanned, for example, which would allow the delivery date to be determined using the Swiss Post app. Art. 142 para. 1bis nZPO now stipulates that delivery is deemed to have taken place on the next working day if delivery of an 'other item' as defined in Art. 138 para. 4 CPC takes place on a Saturday, Sunday or a public holiday recognized by federal or cantonal law at the place of jurisdiction. If a document is served at the weekend, it is deemed to have been served on Monday and the time limit does not start to run until Tuesday. In practice, the “other consignments” within the meaning of Art. 138 para. 4 CPC are generally not consignments that trigger a time limit. Therefore, Art. 142 para. 1bis nCPC is of little practical relevance. As an exception, Jeandin cites a delivery that the court interprets as information but that is perceived by one of the parties as a decision and is contested with an appeal (see Art. 319 para. 2 let. b CPC).
148 Art. 142 para. 1bis nZPO could easily be applied immediately, i.e. from January 1, 2025, to all proceedings, like the provisions in Art. 407f nZPO. Since there is no evidence of an editorial error, according to which the insertion in Art. 407f nZPO was forgotten, it can be assumed that the general transitional law is applicable. Accordingly, in the case of proceedings that are already pending, the previous law continues to apply until the conclusion of the proceedings before the instance concerned (Art. 404 para. 1; above N. 21 et seq.).
N. Suspension of time limits (Art. 145 para. 4 nCPC and Art. 56 para. 2 nSchKG)
149 Art. 145 para. 4 nCPC and Art. 56 para. 2 nSchKG are intended to simplify the coordination of the suspension of time limits between the CPC and the SchKG. Art. 145 para. 4 nZPO stipulates that the suspension of time limits under the CPC applies to “actions under the SchKG”. Similarly, Art. 56 para. 2 nSchKG refers to the suspension of time limits under the CPC for actions under the SchKG. The provisions of the CPC also apply to the time limits for filing an action under the SchKG (e.g. the action to contest the debt [Art. 83 para. 2 SchKG]). According to the prevailing view, requests in summary proceedings are not included in the “actions under the SchKG” mentioned in Art. 145 para. 4 nZPO. The court vacations according to the CPC do not apply in summary proceedings (Art. 145 para. 1 let. b CPC). In the event of an appeal to the cantonal supervisory authority, the suspension of the deadlines under the CPC is not applicable – as in the previous law (Art. 145 para. 4 sentence 2 new CPC). The (exceptional) extension or reinstatement of (action) deadlines under SchKG is also governed by Art. 33 paras. 2 and 4 SchKG under the new law. Art. 145 para. 4 nZPO only regulates the scope of the suspension of deadlines.
150 Previously, the Federal Supreme Court applied the debt collection holiday if the period was triggered by an enforcement action within the meaning of Art. 56 SchKG. According to the previous case law of the Federal Supreme Court, for example, the period for filing an action for denial within the meaning of Art. 83 para. 2 SchKG begins with the commencement of debt enforcement proceedings, which is why the provisions on the debt enforcement holidays are applicable. Accordingly, the period for filing an action for denial is extended in accordance with Art. 63 sentence 2 SchKG. If the end of the period falls during the debt collection holidays, the period is extended until the third day after the end of the holidays, whereby Saturday, Sunday and state-recognized holidays are not counted (so-called expiration suspension). According to the message on the enactment of the Federal CPC, this also applies to actions of objection, joinder and attachment.
151 For those proceedings that are already pending on January 1, 2025, the suspension of the limitation period is assessed according to the previous case law of the Federal Supreme Court (Art. 404 para. 1 CPC; above N. 21 et seq.). If the decision was issued after January 1, 2025, the new law applies to the appeal proceedings, including the time limit for the appeal, i.e. Art. 145 para. 4 nCPC (Art. 405 para. 1 CPC; above N. 28 f.).
152 The question arises as to which deadline regulation applies to the deadlines for action provided for in the SchKG for actions under the SchKG. The amendment has an effect, for example, on the action to deny within the meaning of Art. 83 para. 2 SchKG (see above N. 149 f.). The question arises as to what happens if the decision to allow the objection is served before January 1, 2025. The law does not provide a clear answer to this. The following examples illustrate how the time limit for the action to deny recognition runs:
153 The decision to allow the objection is served on the debtor on December 17, 2024 (i.e., before the debt collection and court vacations). The following variants are conceivable:
Application of the previous law: The debt collection vacation within the meaning of Art. 63 SchKG does not suspend the deadline. The deadline falls on January 6, 2025 and thus not during the debt collection vacation, which expires on January 1, 2025. Therefore, there is no suspension of the period within the meaning of Art. 63 sentence 2 SchKG (see above N. 150).
Application of the new law: When the new law is applied, the period is suspended from December 18, 2024 to January 2, 2025 (Art. 145 para. 1 let. c and 146 para. 1 CPC). The twenty-day period therefore begins on January 3, 2025 and ends on January 22, 2025 (Art. 146 para. 1 CPC).
Application of the previous and the new law (mixed variant): Until December 31, 2024, the running of the deadline was not suspended due to Art. 63 SchKG and 14 days of the deadline expired). On January 1 and 2, 2025, the deadline is suspended. The deadline expires on January 8, 2025 (remaining 6 days).
154 No express transitional provisions exist with regard to the law of time limits. The mixed variant is ruled out a priori because intertemporal law generally leads to the application of either the previous or the new law (“either-or law”; supra N. 1). The existing gap can be resolved by referring to Art. 2 para. 2 SchlB SchKG. This is the transitional provision of the partial revision of the SchKG of December 16, 1994, which came into force on January 1, 1997. Art. 2 para. 2 SchlB SchKG stipulates that the previous law applies to the length of deadlines that began before January 1, 1997. By implication, this means that the other aspects, including compliance with and calculation of the time limit, are governed by the new law. Compliance with the time limit for the action to deny the debt is thus governed by the new law, which is most favorable for the debtor. This also implements the principle that new procedural law is in principle to be applied immediately (see above N. 11). Nevertheless, as a precaution, it is recommended to apply the previous law.
155 The judgment to vacate the judgment debt is served on the debtor on December 18, 2024 (i.e. during the debt collection and court vacations). The following variants are conceivable:
Application of the previous law: The service of the judgment to set aside the objection, which constitutes a debt enforcement act, took place during the debt enforcement vacation. According to the Federal Supreme Court, the debt enforcement act is neither void nor contestable during the debt enforcement vacation, but takes legal effect on the first day after the debt enforcement vacation. Thus, the decision is deemed to have been served on January 2, 2025. The time limit for filing the action to contest the debt collection order thus begins on January 3, 2025 (Art. 31 SchKG in conjunction with Art. 142 para. 1 CPC). Accordingly, the time limit expires on January 22, 2025.
Application of the new law: The decision to allow the appeal is served during the court vacations (see Art. 145 para. 1 let. c CPC). If the decision is served during the court vacations, the time limit begins on the first day after the end of the court vacations (Art. 146 para. 1 CPC). The period therefore begins on January 3, 2025, and this day is deemed to be the first day of the period. The period therefore expires on January 22, 2025.
Application of the previous and new law (combined variant): During the debt collection vacation in December 2024, the decision has no legal effect. On January 1, 2025, it is a matter of service during the judicial vacations, which is why the period is suspended until January 2, 2025 (see Art. 145 para. 1 let. c and 146 para. 1 CPC). The period thus begins on January 3, 2025, with this day being deemed the first day of the period. Accordingly, the period expires on January 22, 2025.
156 This example leads to the same result for all variants, which is why no transition-related problem arises. Otherwise, the same would also apply to the previous example (see N. 154 above).
O. Conciliation proceedings
157 Some provisions on the conciliation proceedings are not contained in Art. 407 et seq. nZPO and are commented on in this section. For the provisions contained in Art. 407 et seq. nZPO, see above N. 66 et seq.
1. Personal Appearance in Conciliation Proceedings (Art. 204 para. 1 sentence 2, para. 2 and para. 3 let. a and let. d nCPC)
158 Art. 204 CPC governs personal appearance in conciliation proceedings. Failure to comply with the obligation to appear in person will result in default of appearance in accordance with Art. 206 CPC (see above N. 76 f.). The CPC now explicitly regulates how the obligation to appear in person at the conciliation hearing is to be interpreted in the case of a legal person as a party (Art. 204 para. 1 nCPC). The new Art. 204 para. 1 nZPO reflects the case law of the Federal Supreme Court, according to which an organ or a person who has a commercial power of attorney to conduct proceedings and conclude a settlement and is familiar with the subject matter of the dispute must appear. Since the case law of the Federal Supreme Court has been codified, it is irrelevant that Art. 204 para. 1 nZPO only applies to proceedings that become pending as of January 1, 2025 (see above N. 10).
159 Art. 204 para. 2 nZPO speaks of the “parties” and not, as in Art. 204 para. 2 aZPO, of “they”. This linguistic adjustment does not lead to any substantive change and is therefore insignificant in terms of transitional law (see above N. 10).
160 In the first exception to the personal appearance at the conciliation hearing, the legislator added the “registered office” of the legal person in Art. 204 para. 3 let. a nZPO. This does not change the content, because the exception already applied to legal entities with a foreign or out-of-canton registered office (see above N. 10).
161 The revision introduced a fourth exception to the obligation to appear in person, namely if one of several plaintiffs or defendants is present and authorized to represent the other plaintiffs or defendants and to conclude a settlement on their behalf (Art. 204 para. 3 let. d nZPO). The purpose of this regulation is to avoid that in neighborhood and property disputes, all neighbors or co-owners have to appear in person at the conciliation hearing. Since Art. 204 para. 3 lit. d nZPO is not included in the catalog of Art. 407f nZPO, this exception only applies to conciliation proceedings that became pending as of January 1, 2025. If possible, it is advisable to wait with the submission of the conciliation request in such cases. There is no indication that Art. 204 para. 3 let. d nZPO was inadvertently not included in the catalog of Art. 407f nZPO. Therefore, no legislative oversight can be assumed as to why the provision is not applicable to proceedings already pending on January 1, 2025.
2. Time limit for filing an action after leave to intervene has been granted (Art. 209 para. 4 new CCP)
162 Art. 209 para. 4 sentence 2 old CCP contained a reservation in favor of further statutory and judicial time limits for filing an action. The Federal Council proposed to delete the reservation regarding judicial time limits for filing an action without replacement. In cases in which the court sets a time limit for filing an action, the conciliation proceedings do not apply (Art. 198 let. h CPC). Therefore, the proviso in Art. 209 para. 4 sentence 2 aCPC concerning court action periods was meaningless. The Federal Council therefore proposed that the court action periods in Art. 209 para. 4 aCPC be deleted. Parliament went a step further by also abolishing the reservation regarding statutory deadlines for action. This means that the shorter ten-day period for an attachment enforcement action in Art. 279 SchKG does not take precedence over the three-month period for action within the meaning of Art. 209 para. 3 CPC.
163 Art. 209 para. 4 nZPO only applies to proceedings that become pending as of January 1, 2025 because the standard is missing from the catalog of Art. 407f nZPO. This means that the time limit for filing an action following the granting of an application for attachment in the case of proceedings that are already pending continues to be governed by Art. 279 SchKG (see Art. 404 para. 1 CPC; supra N. 21 et seq.). If, contrary to the case law of the Federal Supreme Court, the conciliation proceedings are considered to be a separate instance, the new law is applicable (see above N. 22). This is because the Federal Supreme Court considered that the conciliation proceedings are concluded after the statement of claim has been approved. Consequently, the court vacations also apply to the time limit for filing an action because Art. 145 para. 2 let. a CPC is not applicable. As a precaution, the action in proceedings in which the request for conciliation was filed before January 1, 2025, must be filed within the ten-day period provided for in Art. 279 SchKG.
3. Determination of court costs and party compensation in the event of a decision by the conciliation authority (Art. 212 para. 3 nZPO)
164 In the case of a decision by the conciliation authority in a pecuniary dispute involving an amount in dispute of up to CHF 2,000, the conciliation authority shall determine the court costs and the party compensation in accordance with Art. 212 para. 3 nZPO. The National Council's intention in introducing Art. 212, para. 3 of the new Code of Civil Procedure was to prevent a party from initiating proceedings in order to obtain compensation for the costs incurred by them. The majority view among legal scholars was that the conciliation authority should set the court costs and compensation for the costs incurred by the party (applying Art. 114 of the Code of Civil Procedure) when making a decision. A minority also applies Art. 113 CPC in the decision-making procedure under Art. 212 CPC, which is why the conciliation authority may not set any party compensation. Art. 212 para. 3 nCPC clarified this question in favor of party compensation.
165 Like the other changes to the law of costs, this norm is also not included in Art. 407 et seq. nZPO (see above N. 127 et seq.). If the majority of the doctrine is followed, Art. 212 para. 3 nZPO is merely a codification of the previous legal view. In this case, there are no transitional issues (see above N. 10). If the minority view is followed, the conciliation authority may not award any party compensation under the old law. Since Art. 212 para. 3 nZPO is not included in Art. 407f nZPO, this standard only applies to conciliation proceedings that become pending as of January 1, 2025 (see Art. 404 para. 1 CPC a contrario; supra N. 21 et seq.). Since the other provisions of the law on costs were not integrated into Art. 407 et seq. nZPO either, it cannot be assumed that this is a legislative oversight (see above N. 121).
P. Counterclaim (Art. 224 para. 1bis nZPO)
166 Art. 224 para. 1bis lit. a nZPO expressly allows the counterclaim, which would be adjudicated in the simplified procedure solely on the basis of the amount in dispute, to be made in response to a main action that is being assessed in the ordinary procedure (so-called cross-procedural counterclaim). The counterclaim is assessed in the ordinary proceedings (Art. 224 para. 1bis lit. a nZPO). The Federal Supreme Court has left this question open so far. The majority of legal scholars have already considered such counterclaims to be admissible, which is why no transitional law questions arise with this view. A minority prohibited such a counterclaim. If the minority view is adopted, the transitional question arises as to whether a counterclaim can be filed after January 1, 2025, in response to a main action that became pending before January 1, 2025, which could be assessed in a simplified procedure due to the amount in dispute. This is to be denied because the lis pendens of the first action that initiated the proceedings is used to determine the applicable procedural law (see above N. 26). For this reason, the previous law is applicable, which, according to the minority, prohibits a corresponding counterclaim (see Art. 404 para. 1 CPC; above N. 21 et seq.). If the counterclaim is raised independently, a later unification of the proceedings under Art. 125 let. c CPC is ruled out. The unification of proceedings is only admissible if both claims could be judged in the same type of proceedings.
167 Art. 224 para. 1bis let. b nZPO basically codifies the case law of the Federal Supreme Court, according to which the filing of a counterclaim for negative declaratio against a partial claim that is to be assessed in a simplified procedure solely on the basis of the amount in dispute is admissible. It is unclear whether this also applies to the partial claim that is not genuine, contrary to the Federal Supreme Court. In this case, the partial claim and the negative declaratory counterclaim are assessed in the ordinary proceedings (Art. 224 para. 1bis let. b nZPO). Since, in my opinion, only the case law of the Federal Supreme Court was codified for the genuine and the non-genuine partial claim, there are no transitional issues (see above N. 10). If the improper partial claim is not covered by Article 224 para. 1bis let. b CPC (quod non), it can still be brought in proceedings that are already pending as of January 1, 2025. This is because the applicability of the applicable procedural law is determined on the basis of the pending status of the action that initiated the proceedings (see above N. 26). This means that the previous law and the case law issued on it remain applicable in the pending proceedings (see Art. 404 para. 1 CPC; supra N. 21 et seq.).
168 On the amount in dispute of the counterclaim under Art. 94 para. 3 nCPC supra N. 122 et seq.
Q. New facts and evidence (Art. 229 para. 1 to para. 2bis new CCP)
169 Parliament has fundamentally revised Art. 229 of the old CPC. Only Art. 229 para. 3 CPC remained untouched. The legal definition of genuine and spurious novae, which was moved from Art. 229 para. 1 of the old CPC to Art. 229 para. 2 of the new CPC, remains unchanged. Under the new law, the parties may present new facts and evidence “without restriction in the first party submission pursuant to Art. 228 para. 1” if no second exchange of submissions or no instruction hearing has taken place (Art. 229 para. 1 nZPO). In doing so, the legislator corrected the (strict) case law of the Federal Supreme Court, according to which “at the beginning of the main hearing” under Art. 229 para. 2 aZPO requires a separate presentation of facts before the first party submissions. If the parties were able to express themselves without restriction in a second exchange of written submissions or in instructions to the court, the novelty bar applies. This means that the parties continue to have the opportunity to present facts and evidence without restriction on two occasions.
170 After the novation barrier has been crossed, the previous law stipulated that the novae must be submitted “without delay” (Art. 229 para. 1 aZPO). Art. 229 nZPO replaces this strict approach, which was also associated with uncertainties, with a differentiated regulation in Art. 229 para. 2 and para. 2bis nZPO. For the phase prior to the first party submission, Art. 229 para. 2 nCPC provides that novae must be submitted within a time limit set by the court or, in the absence of such a time limit, “at the latest by the first party submission” in the main hearing pursuant to Art. 228 para. 1 CPC. What is disputed in the new law is whether this is an isolated nova submission that precedes the first party submissions. In the subsequent phase after the first party submissions, novae will only be considered if they are submitted within the time limit set by the court, or, in the absence of such a time limit, at the latest in the next hearing (Art. 229 para. 2bis nZPO).
171 Art. 229 nCPC is not included in Art. 407f nCPC. Accordingly, in proceedings that were pending before January 1, 2025, the (stricter) rules of Art. 229 aCPC must be observed (see Art. 404 para. 1 CPC; supra N. 21 et seq.). This transitional legal regulation makes sense. On the one hand, the parties must be aware of the right to file a new plea when proceedings are initiated for procedural reasons. On the other hand, it is also crucial for the court's case management that the applicable right to file a new plea is established. A split into a phase in which Art. 229 aZPO applies and a phase in which Art. 229 nZPO applies is impractical and would lead to difficulties (e.g. discovery of the novelty at the beginning of December 2024 and setting of a time limit by the court in terms of Art. 229 para. 2bis nZPO). Accordingly, novae in these proceedings must continue to be submitted “without delay” (Art. 229 para. 1 aZPO; supra N. 170). In addition, the Federal Supreme Court's case law under the old law also applies in these proceedings, according to which the facts and evidence are to be presented in a separate statement of facts before the first submissions by the parties (supra N. 169).
R. Content of the decision (Art. 238 let. g nZPO)
172 Art. 238 let. g nZPO stipulates that the court shall state the essential factual and legal grounds for the decision in the decision, if applicable. In contrast, Art. 238 let. g aZPO only spoke of the grounds for the decision. The new wording does not entail any substantive change, which is why no transitional issues arise (see above N. 10).
S. Default in the simplified procedure
173 The consequences of default at the main hearing of the simplified procedure were expressly regulated with the revision of 17 March 2023 (cf. Art. 245 nZPO). The law still does not regulate the consequences of failure to provide a written statement within the meaning of Art. 245 para. 2 sentence 1 CPC. The new law distinguishes between the following scenarios regarding default at the main hearing.
1. Default at the hearing in the case of an action without written statement of grounds (Art. 245 para. 1 sentences 2 and 3 nZPO)
174 If the claim in the simplified procedure does not include a statement of reasons, the court serves the claim on the defendant and at the same time summons the parties to the hearing (Art. 245 para. 1 sentence 1 CPC). Until now, the Federal Supreme Court has provided that if the defendant is in default, Art. 234 para. 1 CPC is to be applied by analogy. Accordingly, the court considers the claim and the submissions of the claimant and, if necessary, officially takes evidence in terms of Art. 153 and 247 para. 2 CPC (see Art. 234 para. 1 CPC). In this decision, the Federal Supreme Court left open the question of how to proceed in the event of default by the claimant.
175 The new law is less strict because if a party is in default at the hearing, the court immediately summons them to a single further hearing and informs the parties of the consequences of any further default (Art. 245 para. 1 sentence 2 nZPO). The new provision therefore applies to both plaintiffs and defendants. The second hearing must take place within thirty days of the first hearing (Art. 245 para. 1 sentence 3 new CPC). If one of the parties fails to appear at the second hearing, Art. 234 para. 1 CPC applies. If both parties default, the proceedings are to be dismissed as without object (Art. 219 in conjunction with Art. 234 para. 2 CPC). Art. 245 para. 2 sentence 2 nCPC now explicitly refers to the application of Art. 234 CPC mutatis mutandis.
176 If the simplified procedure was already pending on January 1, 2025, the previous law applies in principle (Art. 404 para. 1 CPC; supra N. 21 et seq.). According to the case law of the Federal Supreme Court, this also applies if only the conciliation proceedings are pending before January 1, 2025 (see supra N. 22). The stricter Federal Supreme Court case law was issued under the previous law (see above N. 174). In connection with Art. 222 CrimPC, the Federal Supreme Court changed its case law even before the partial revision of the CrimPC of June 17, 2022, came into force because it came to a better understanding of Art. 222 CrimPC thanks to the legislator (see above N. 107 for details). The solution enshrined in Art. 245 para. 1 of the new CPC would have arisen under the previous law from an analogous application of Art. 223 para. 1 CPC. Only the period of thirty days does not arise from an analogous application of Art. 223 para. 1 CPC. Since the legislature expressed a better understanding of the previous law, it can, in my opinion, be reasonably argued that the Federal Supreme Court's case law is no longer applicable to proceedings that are already pending, both before January 1, 2025 and after January 1, 2025.
2. Default of appearance at the hearing in the case of an action with written statement of grounds (Art. 245 para. 2, second sentence, nZPO)
177 In the case of a well-founded action, Art. 234 CPC applies by analogy in the event of default at the hearing (Art. 245 para. 2 sentence 2 nCPC). Accordingly, no second hearing is to be scheduled, but a default judgment is to be handed down. This was already the case under the previous law. Therefore, in the event of default at the hearing in the case of an action with written grounds, no transitional questions arise (see above N. 10).
T. Summary proceedings
1. Scope of application (Art. 249, 250, 251, 251a and 305 nZPO)
178 The enumerations in the catalogs of Art. 249, 250, 251, 251a and 305 nZPO for the application of the summary procedure are now exhaustive because the legislator deleted the word “in particular”. The previous non-exhaustive list was intended to create scope for further disputes that, by their very nature, necessarily belong in summary proceedings. It is questionable whether, in the case of those cases that were forgotten, the exhaustive list will be relaxed by analogous application (e.g. for the rights of board members to information and inspection under Art. 715a CO). For summary proceedings that were already pending on January 1, 2025, the non-exhaustive lists continue to apply (see Art. 404 para. 1 CPC; supra N. 21 et seq.).
179 Art. 249 let. a no. 5 nZPO now provides for summary proceedings in the event of deficiencies in the organization of an association. In my opinion, the similarity of Art. 69c CC to company law means that summary proceedings are already applicable under the current law. Accordingly, no transitional issues arise (see above N. 10). Otherwise, the procedural type of the previous law would apply to corporate organizational defect proceedings pending on 1 January 2025 (Art. 404 para. 1 CPC; above N. 21 et seq.).
180 In Art. 250 let. c no. 6 new CCP, the legislature codified the Federal Supreme Court's case law according to which every measure aimed at remedying organisational deficiencies in the case of the AG, GmbH and cooperative is subject to summary proceedings. This rendered Art. 250 let. c no. 11 old CCP redundant and it could be repealed. As the case law of the Federal Supreme Court and thus the previous legal situation was codified, there are no transitional issues (see above N. 10).
181 Art. 250 let. c no. 16 nCCP provides for summary proceedings for the deletion of a company in the cases of Art. 938a para. 2 CO. Due to the revision of the law on the commercial register of March 17, 2017, which came into force on January 1, 2021, Art. 250 let. c no. 16 nZPO should refer to Art. 934 para. 3 CO. The summary procedure was already applied under the previous law. Consequently, in the absence of any substantive change, there are no transitional issues (see above N. 10).
182 Since the catalogs are now formulated in a conclusive manner, it is argued that the practice of some cantons in French-speaking Switzerland regarding the security for party compensation within the meaning of Art. 99 CPC can no longer be decided in summary proceedings. However, proceedings (in French-speaking Switzerland) that are already pending on January 1, 2025 may still be continued as summary proceedings (see Art. 404 para. 1 CPC; supra N. 21 et seq.). The security for the party compensation is a precautionary measure. For this reason, the summary procedure based on Art. 248 lit. d CPC is applicable, which is why, in my opinion, no transitional legal question arises (see above N. 10).
2. Precautionary measures against the media (Art. 266 lit. a nZPO)
183 Provisional measures can now also be ordered in the case of existing rather than merely impending violations of rights (Art. 266 let. a CPC). This corrects a legislative oversight that occurred when Art. 28c para. 3 of the former Civil Code was transposed into the CPC. Since the previous law was a legislative oversight and since case law and doctrine already apply as provided for in the new regulation, there is no substantive change. Therefore, there are no transitional legal issues (see above N. 10).
184 According to Art. 266 let. a nZPO, only a “serious disadvantage” is now required. Previously, a “particularly serious disadvantage” was required (Art. 266 let. a aCPC). This restricts the media privilege. For proceedings that were already pending on January 1, 2025, the requirement of a “particularly serious disadvantage” continues to apply (see Art. 404 para. 1 CPC; above N. 21 et seq.). If the time frame allows, the application for interim measures can only be filed from January 1, 2025. However, the impact of this change in practice is likely to be minimal.
3. Appeals in summary proceedings
a. Appeal (Art. 314 nZPO)
185 Art. 314 para. 2 nZPO now provides for a thirty-day period for the appeal and the response to the appeal in summary proceedings for family law disputes. In addition, the cross-appeal is now also admissible in summary proceedings (Art. 314 para. 2 nZPO in fine). In the other summary proceedings, the cross-appeal is inadmissible, as before (Art. 314 para. 1 nCPC in fine). If the first-instance decision is issued from January 1, 2025, the new law applies to the time limit for appeal and the admissibility of the cross-appeal (Art. 405 para. 1 CPC; above N. 28 f.).
b. Appeal (Art. 321 para. 2 new CPC)
186 Under the previous law, a thirty-day time limit for appeal applies to “other first instance decisions” within the meaning of Art. 319 let. b CPC, because the ten-day time limit for appeal under Art. 321 para. 2 old CPC applies only to summary decisions and procedural orders. The ten-day appeal period now also applies to “other first-instance decisions” (Art. 321 para. 2 nZPO). The legislator made this change because it is unclear what is meant by an “other first-instance decision”. Art. 321 para. 2 nCPC applies to those decisions that are issued as of January 1, 2025 (Art. 405 para. 1 CPC; supra N. 28 et seq.).
U. Family law proceedings
187 Various amendments to family procedural law are contained in Art. 407 et seq. of the new CCP and have already been explained in Part III (Art. 198 let. bbis of the new CCP [see above, N. 67]; Art. 298 para. 1bis nZPO [see above, N. 42]; Art. 315 para. 2 lit. c and d nZPO [see above, N. 86]; Art. 317 para. 1bis nZPO [see above, N. 81]). Conversely, the other amendments to family procedural law are not yet applicable to pending proceedings (see Art. 404 para. 1 CPC; supra N. 21 et seq.).
188 On appeals in summary proceedings in family law, see above N. 185.
1. Simplified procedure for ancillary divorce proceedings (Art. 288 para. 2 and 291 para. 3 nZPO)
189 If the spouses cannot agree on all the ancillary consequences of divorce or the grounds for divorce, or if the court does not approve the settlement of ancillary consequences, the proceedings will continue on an adversarial basis (so-called ancillary divorce proceedings; Art. 288 para. 2 CPC and 291 para. 3 nCPC). The adversarial procedure was already applicable under the previous law to divorce suits, although Art. 291 para. 3 aZPO did not explicitly refer to the adversarial procedure. Until now, the annex procedure was conducted as an ordinary procedure. The simplified procedure is now planned for the annex procedure (Art. 288 para. 2 and 291 para. 3 nZPO). This change means that purely oral proceedings will be increasingly possible.
190 Annex proceedings under divorce law that are already pending on January 1, 2025 will continue to be conducted in the ordinary proceedings (Art. 404 para. 1 CPC; above N. 21 et seq.). The relevant point in time is the pendency of the action, which occurs when the joint petition for divorce or the divorce action is filed (see also Art. 274 CPC). From the point of view of transitional law, it is therefore irrelevant at what point in time the proceedings are continued on an adversarial basis.
191 The same also applies to proceedings for action for marriage annulment and legal separation, because these are based on the provisions for divorce actions (Art. 294 para. 1 CPC). The same also applies to the dissolution and annulment of registered partnerships (Art. 307 CPC).
2. Independent actions for the maintenance of minor and adult children and other child-related matters (Art. 295 nZPO)
192 The scope of application of Art. 295 aZPO was controversial because this provision merely stipulated that the simplified procedure applies to independent actions. In an unpublished decision, the Federal Supreme Court ruled in favor of the simplified procedure for an action for maintenance of an adult, without providing detailed reasons. In contrast, in an officially published decision, the Federal Supreme Court applied the ordinary procedure to a claim by an adult person for payment of relatives' support contributions or to the claim of the subrogated community in their place, and not the simplified procedure based on Art. 295 aZPO. According to the prevailing legal opinion, this Federal Supreme Court decision does not mean, however, that Art. 295 aCPC is not applicable to maintenance claims of adult children. In contrast, a minority draws the conclusion from this decision that maintenance claims of adult children are subject to the ordinary procedure, unless the simplified procedure applies due to the amount in dispute (see Art. 243 para. 1 CPC). Cantonal case law is divided.
193 The ambiguities of the previous law will be eliminated with the revision of 17 March 2023. Art. 295 nZPO expressly covers independent actions by children who have come of age. This means that the principles of mandatory investigation and ex officio prosecution within the meaning of Art. 296 are also applicable in these cases.
194 For proceedings already pending on January 1, 2025, Art. 295 aCPC and the associated uncertainties apply (see Art. 404 para. 1 CPC; see above N. 21 et seq.). If the judgment of the court of first instance was handed down after January 1, 2025, the new law applies to the appeal proceedings (Art. 405 para. 1 CPC; supra N. 28 et seq.). Art. 295 CPC also leads to the application of the unrestricted principle of investigation within the meaning of Art. 296 para. 1 CPC. This in turn would lead to the court of appeal taking into account new facts and evidence up to the deliberation (Art. 317 para. 1bis nCPC; above N. 81). In my opinion, however, the previous law should also be applied in appeal proceedings and Art. 317 para. 1bis nZPO should only be applied if the unrestricted principle of investigation was applicable in the previous law in first-instance proceedings. Otherwise, the new regulation provided for in the previous law can be undermined by delaying proceedings and lodging an appeal.
3. Automatic inclusion and party status of parents in the maintenance and paternity suit (Art. 304 para. 2 sentences 2 and 3 nCPC)
195 According to Art. 304 para. 2 CPC, in the event of a maintenance suit, the court also decides on parental custody and other child-related matters (so-called competence attraction). The Federal Court considered that in this situation, the “formal inclusion” of the parent concerned in the proceedings was necessary. The Federal Court did not specify the exact form of this inclusion, and it remains unclear to this day. At least to a certain extent, this is also an “academic question”.
196 Art. 304 para. 2 nZPO now stipulates that parents have party status if the parent-child relationship has been established. As in divorce proceedings, the court can distribute the party roles. According to the message, in the case of disputes concerning maintenance only, only one parent and the child (usually represented by the other parent) are parties to the proceedings. However, legal scholars are correct in stating that the other child-related matters are the subject of the dispute from the outset and without party applications, based on the principle of official maxim in the sense of 296 para. 3 CPC, which is why both parents are to be granted party status from the outset.
197 For proceedings already pending on January 1, 2025, Art. 304 para. 2 aCPC applies (Art. 404 para. 1 CPC; see above N. 21 et seq.). Since the Federal Supreme Court already requires a “formal inclusion” of the parent concerned under the current law, little will change in practice. If the first-instance judgment was handed down after January 1, 2025, the new law applies to the appeal proceedings (Art. 405 para. 1 CPC; supra N. 28 f.). Accordingly, the parents are to be involved in the proceedings as parties in accordance with Art. 304 para. 2 nCPC. Some kind of participation was already necessary under the previous law. Therefore, in my opinion, the question of how to deal with intentional procedural delays that lead to the application of the new law in appeal proceedings does not arise, or at most only in theory.
198 The Federal Supreme Court declared a judgment null and void without “formal inclusion” of the parent concerned in the proceedings. The question of how to deal with decisions that have been made without “formal inclusion” also arises after the entry into force of Art. 304 para. 2 nZPO. However, this is not a transitional issue, because the problem already arose under the previous law. The nullity means that these judgments have no legal effect whatsoever and therefore cannot be enforced. Since the judgment is null and void, the proceedings have not been concluded. In my opinion, the previous law therefore applies with regard to the resumption of proceedings for the purpose of issuing a valid judgment (see also above N. 23).
V. Cross-appeal (Art. 313 para. 2 let. b nZPO)
199 The revision of 17 March 2023 repeals Art. 313 para. 2 let. b aZPO, according to which the cross-appeal lapses if the appeal is dismissed as manifestly unfounded. An appeal that is manifestly unfounded is not served on the other party in any case (Art. 312 para. 1 CPC in fine). Therefore, the other party is not given the opportunity to file a cross-appeal in its response (see Art. 313 para. 1 CPC). Art. 313 para. 2 let. b aCPC was a legislative oversight and is therefore redundant. In the absence of substantive changes, there are no transitional issues regarding the cross-appeal (see above N. 10, on the right to cross-appeal in family law summary proceedings, see above N. 185).
W. Revision
1. Discovery of new facts and evidence (Art. 328 para. 1 let. a nZPO)
200 Art. 328 para. 1 lit. a nZPO states that a ground for revision only exists if the subsequently discovered significant facts or evidence could not have been provided “despite due attention” in the earlier proceedings. The message and the parliamentary deliberations are silent on this amendment. The administration assumes that this is in line with previous practice. Honegger-Müntener/Rufibach/Schumann assume that this will weaken the standard of care expected by the Federal Supreme Court. The Federal Supreme Court has so far set relatively high standards. It requires that it should not have been possible for the appellant in the revision, despite all due care in collecting the material for the proceedings, to have submitted the facts or evidence asserted retrospectively in good time.
201 The new law applies to the revision of judgments that were handed down under the previous law (Art. 405 para. 2 CPC; supra N. 28). If the request for revision has already been submitted, i.e. the revision proceedings are pending, the previous law applies. Accordingly, Art. 328 para. 1 (a) aZPO applies to applications for revision that were submitted before January 1, 2025. Assuming that no substantive changes were made, no transitional issues arise (see above N. 10).
2. Invalidity of the acknowledgment of claim, withdrawal from the action or court settlement (Art. 328 para. 1 let. c new CCP)
202 The revision of 17 March 2023 added that the invalidity of the acknowledgment of the claim, the withdrawal from the action or the court settlement may arise “due to formal or material defects” (Art. 328 para. 1 let. c nZPO). In the absence of a material change, there are no transitional issues (see above N. 10).
3. Ground for challenge (Art. 328 para. 1 let. d nCCP)
203 For the appeal on the discovery of the ground for challenge under Art. 328 para. 1 let. d nCCP, see above N. 105.
4. Postponement of enforceability in the appeal proceedings (Art. 331 para. 2 nCCP)
204 Art. 331 para. 2 of the new Code of Civil Procedure, like other provisions, now speaks of a postponement of the “enforceability” and no longer of the “enforcement”. This is an editorial change with no substantive significance and thus no significance in terms of transitional law (see above N. 10).
X. Amendments to the BGG
1. Language of legal documents (Art. 42 para. 1bis nBGG)
205 On this, see above N. 144 f.
2. Requirements of the BGG for the opening of cantonal decisions (Art. 112 para. 2 first sentence nBGG)
206 On this, see above N. 79 f. and N. 84.
3. Revision in Federal Supreme Court Proceedings (Art. 123 para. 2 let. a nBGG)
207 Art. 123 para. 2 let. a nBGG now contains the addition “despite due care”, as does Art. 328 para. 1 let. a nZPO. Honegger-Müntener/Rufibach/Schumann assume that – as with Art. 328 para. 1 let. a nZPO – the standard of care required by the Federal Court is relaxed (on Art. 328 para. 1 let. a nZPO supra N. 200 f.). No reasons are given in the materials. Please refer to the comments on Art. 328 para. 1 let. a nZPO (see above N. 200).
208 In the case of an appeal to the Federal Supreme Court, the new law applies if the proceedings were initiated after it came into force (see Art. 132 para. 1 BGG; see above N. 80 for the analogous application of Art. 132 BGG). Art. 123 para. 2 let. a nBGG therefore applies to all appeal proceedings in which the application for appeal was filed after January 1, 2025. For already pending appeal proceedings, the previous law applies, i.e. Art. 123 para. 2 let. a aBGG.
Y. Arbitration
1. English as the language of proceedings in state summary proceedings
209 See above N. 142 f.
2. Removal of an arbitrator by agreement (Art. 370 para. 1 nZPO)
210 Art. 370 para. 1 of the new ZPO provides that any member of the arbitral tribunal may be dismissed by written agreement of the parties. The new law refers to the form required for the arbitration agreement for the form of the agreement (Art. 370 para. 1 of the new ZPO). Accordingly, proof in text form is sufficient (see Art. 358 para. 1 CPC). In doing so, the legislator adopted the previous view in legal doctrine regarding the form of revocation. In the absence of a change in the law, no transitional issues arise (see above N. 10).
3. Lis pendens (Art. 372 para. 2 new CPC)
211 Art. 372 para. 2 of the Swiss Code of Civil Procedure was deleted. This provision stipulated that if an action concerning the same subject matter and between the same parties was brought before a state court and an arbitral tribunal, the court last seized shall stay its proceedings until the court first seized has decided on its jurisdiction. Art. 372 para. 2 of the old Swiss Code of Civil Procedure (old CPC) thus contained a chronological priority rule that provided for an equal interplay between the state court and the arbitral tribunal. This rule was in conflict with Art. 61 let. b CPC, according to which the state court does not decline its jurisdiction in the case of an “obviously invalid” or “unenforceable arbitration agreement” (limited jurisdiction). The final decision on the jurisdiction of the arbitral tribunal lies with the arbitral tribunal. Under the new law, an arbitral tribunal is therefore no longer required to suspend the proceedings until a state court has ruled on whether the arbitration agreement is “manifestly invalid” or “unenforceable”.
212 For arbitration proceedings that are already pending on January 1, 2025, the previous law applies (see Art. 407 para. 2 CPC). Accordingly, the state court and the arbitral tribunal must apply Art. 372 para. 2 aCPC. Whether arbitration proceedings are pending is determined in accordance with Art. 372 para. 1 CPC. However, the parties to the proceedings may agree that the new law is applicable (see Art. 407 para. 2 sentence 2 CPC). In my opinion, an agreement only binds the arbitral tribunal, because such an agreement does not bind the state court. This follows from the wording, which only speaks of “arbitration proceedings”. Furthermore, Art. 407 para. 4 CPC, for example, does not provide for the possibility of agreeing on the new law for state proceedings under Art. 356 CPC. This also indicates that it is not possible to choose in favor of the new law in state proceedings.
4. Enforcement of provisional measures ordered by the arbitral tribunal (Art. 374 para. 2 nCPC)
213 If the affected party does not voluntarily submit to a measure ordered by the arbitral tribunal, the state court shall, at the request of the arbitral tribunal or a party, make the necessary orders (Art. 374 para. 2 nZPO). The previous law provided that the consent of the arbitral tribunal must be obtained if a party requests such measures (Art. 374 para. 2 aZPO).
214 Art. 407 para. 4 CPC provides that the previous law applies to proceedings before the state courts that have jurisdiction under Art. 356 CPC, provided that these are already pending. In the case of Art. 374 CPC, the general rules on local and subject-matter jurisdiction apply and not Art. 356 CPC. Thus, it is not an auxiliary procedure within the meaning of Article 407 para. 4 CPC. Accordingly, the previous law applies based on Article 404 para. 1 CPC (see above N. 21 et seq.). However, the application of Article 407 para. 4 CPC would lead to the same result.
5. Revision on discovery of new facts and evidence (Art. 396 para. 1 (a) nZPO)
215 Art. 396 para. 1 (a) nZPO contains – like Art. 328 para. 1 (a) nZPO and Art. 123 para. 2 (a) nBGG – the addition “despite due care” (see above N. 200 and N. 207). According to one legal scholar, this codifies the practice of the Federal Supreme Court. However, as with Art. 328 para. 1 let. a nZPO, this is not codified in the new Code. Under transitional law, the same applies as stated in N. 201.
Z. Enforcement (Art. 400 para. 2bis and para. 3 and Art. 401a nCPC)
216 Art. 400 et seq. CPC contain enforcement provisions. Under Art. 400 para. 2bis nCPC, the Federal Council is obliged to provide the public with information on legal costs and the possibilities of free legal aid and litigation funding. Art. 400 para. 3 nZPO now provides that the Federal Council may also transfer the provision of forms and information to the Federal Office of Justice. The new mandates to the Federal Council do not constitute “proceedings” within the meaning of Art. 407f nZPO (see above N. 16 et seq.). Furthermore, the new provisions are missing from Art. 407f nZPO. Accordingly, the Federal Council and the Federal Office of Justice must fulfill the corresponding obligations from January 1, 2025. This means that the relevant information should be available (online) from that date.
217 Art. 401a nZPO obliges the Confederation and the cantons to ensure that sufficient statistical data and business figures are available on the application of this law, in particular the number, type, subject matter, duration and costs of proceedings. This norm also does not concern “proceedings” and is missing from Art. 407f nZPO. The obligation to collect the relevant data will therefore only come into force on January 1, 2025.
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Materials
Amtliches Bulletin des Nationalrates der Jahre 2022 und 2023 (zit. AB [jeweilige Jahreszahl] N mit [nachfolgender Seitenzahl]).
Amtliches Bulletin des Ständerates der Jahre 2021, 2022 und 2023 (zit. AB [jeweilige Jahreszahl] S mit [nachfolgender Seitenzahl]).
Botschaft des Bundesrates zur Änderung der Schweizerischen Zivilprozessordnung vom 26.2.2020 (Verbesserung der Praxistauglichkeit und der Rechtsdurchsetzung), BBl 2020 2697 ff. (zit. Botschaft ZPO-Revision 2020).
Botschaft des Bundesrates zur Schweizerischen Zivilprozessordnung vom 28.6.2006, BBl 2006 7221 ff. (zit. Botschaft ZPO 2006).
Kommissionsprotokoll der Kommission für Rechtsfragen des Nationalrates vom 7./8.4.2022 und 2.3.2023 (zit. Kommissionsprotokoll RK-N vom [Datum], [Seitenzahl].
Kommissionsprotokolle der Kommission für Rechtsfragen des Ständerats vom 12./13.4.2021 und 30.6./1.7.2022 (zit. Kommissionsprotokoll RK-S vom [Datum], [Seitenzahl].).