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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- 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
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 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
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- 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
- Note
- I. General
- II. Basis of the Subject Matter Jurisdiction of the Commercial Courts
- III. Commercial disputes (Art. 6 para. 2 CPC)
- IV. Right of choice of the unregistered plaintiff (Art. 6 para. 3 CPC)
- V. Optional Commercial Court Disputes (Art. 6 para. 4 CPC)
- VI. Other commercial court matters
- VII. Precautionary measures and precautionary taking of evidence
- VIII. Special constellations
- Bibliography
- Materials
Note
This commentary is already based on the revision of the CPC (Improving Fitness for Practice and Enforcement; Business No. 20.026) adopted in March 2023 and effective January 1, 2025.
I. General
A. History of origins
1 The only commercial courts still existing in Switzerland today are found in the cantons of Zurich, Aargau, Bern and St. Gallen. In this order, the commercial courts were founded in the second half of the 19th century and in the first half of the 20th century. This was always triggered by the needs of the business community and, in particular, by the assumption that so-called specialized judges would be better able to classify the facts of the dispute and that the proceedings could be more flexible, more expeditious and less expensive.
2 It is true that before the introduction of the CPC, there were sometimes considerable differences in the subject-matter jurisdiction of the cantonal commercial courts. Nevertheless, when creating the CPC, the federal legislator was guided by the previous cantonal provisions.
B. Purpose of the Norm
3 The provision of Art. 6 CPC would in itself be superfluous if the commercial courts were not the only cantonal instances. This is because the regulation of subject-matter jurisdiction is in principle the responsibility of the cantons, unless the law provides otherwise (Art. 4 para. 1 CPC). The cantons would therefore be free, even without Art. 6 CPC, to introduce "commercial courts" with limited subject-matter jurisdiction, such as specialized labor courts, tenancy courts, family courts, etc. may provide. However, due to the principle of double cantonal jurisdiction (double instance; Art. 75 para. 2 BGG), such "commercial courts" may not serve as the sole cantonal courts.
4 Accordingly, the purpose of Art. 6 CPC is to enable the cantons at the level of the higher cantonal courts (Art. 75 para. 2 lit. a and b BGG) to provide for a specialized court as the sole cantonal instance for commercial court disputes. By shortening the number of instances, among other things, an acceleration of the process is achieved.
5 As specialized courts, the commercial courts created under Art. 6 CPC are not inadmissible exceptional courts within the meaning of Art. 30 para. 1 FC, but are generally abstractly competent for disputes under Art. 6 CPC and thus admissible special or specialized courts.
C. Commercial courts as specialized courts
6 Commercial courts are characterized by the combination of legally qualified judges with judges versed in the respective industry. In order to fulfill their purpose as specialized courts, commercial courts must have a sufficient number of specialized judges with appropriate knowledge of the industry. The pools of specialized judges in the cantons of Bern and Zurich consist of 60-70, the one in the canton of St. Gallen of 25 and the one in the canton of Aargau currently of twelve specialized judges.
7 In my opinion, a specialized court only exists if the majority of the panel of judges - subject to the jurisdiction of individual judges - consists of specialized judges. The existence of specialized knowledge in the panel of judges is the decisive argument why a special commercial court should be responsible for certain disputes. This idea is all the better taken into account the more specialist judges are involved in the decision. In Switzerland, therefore, with one rare exception, a practice has been established whereby female specialist judges form the majority in panels of five at a ratio of 3:2 or in panels of three at a ratio of 2:1.
II. Basis of the Subject Matter Jurisdiction of the Commercial Courts
A. Examination of Subject Matter Jurisdiction
1. Principle of examination
8 Pursuant to Art. 60 CPC, the court examines ex officio, inter alia, whether the procedural requirement of subject-matter jurisdiction is met. According to the case law of the Federal Supreme Court, this standardizes a limited principle of examination, which has an asymmetrical effect on the parties. The following principles apply: No objection by the defendant is required for the court to review its subject-matter jurisdiction. The court is also not bound by concessions made by the parties. Art. 60 CPC does not release the plaintiff from the burden of proof or the burden of assertion. Rather, the negotiation maxim and the right of novelty also apply to the plaintiff with regard to this procedural requirement. Thus, the court does not have to search for facts of its own accord that speak in favor of its subject-matter jurisdiction. The defendant, on the other hand, is relieved of the burden of denial, and the right of novelty does not apply to facts that speak against the subject-matter jurisdiction. The court shall only investigate facts that speak against the existence of its subject-matter jurisdiction. However, it is not obliged to conduct extensive inquiries in this context. Only if the court has indications for its lack of subject-matter jurisdiction, an investigation of the facts is required ex officio.
2. Time of examination
9 The courts are free to decide when to examine their subject-matter jurisdiction. The examination may take place from the initiation of proceedings until at the latest one logical second before a decision on the merits is rendered. Whether a written response must be obtained in ordinary proceedings prior to a decision not to enter an action is a matter of dispute. For reasons of procedural economy and due to the requirement of acceleration (Art. 124 para. 1 CPC), it is desirable for the court to examine the matter as early as possible in order to be able to take any further precautions, e.g. to limit the response to the question of subject-matter jurisdiction (cf. Art. 222 para. 3 and Art. 125 lit. a CPC).
3. Time at which subject-matter jurisdiction must be present at the latest
10 According to a common formula, the procedural prerequisites - or the facts relevant for their assessment - must, with certain exceptions, be present at the time the decision on the merits is rendered. However, it is not sufficient if the subject-matter jurisdiction only exists at the time the decision on the merits is rendered. Rather, the subject-matter jurisdiction must already be present when a binding decision is made on it, e.g. in an early trial decision. If the subject-matter jurisdiction is denied therein, the matter will not be addressed by a procedural final decision and no decision on the merits will be rendered.
11 A distinction must be made between this and the question at what point in time those facts must have been introduced into the proceedings that allow the conclusion of subject-matter jurisdiction. Based on the asymmetrical principle of investigation propagated by the Federal Supreme Court (cf. n. 8), a distinction must be made between facts that speak for and against subject-matter jurisdiction: For facts establishing jurisdiction, the usual trial maxim with a strict right of novelty applies (Art. 229 para. 1 CPC). Thus, a factual jurisdiction that has not yet been established can only be remedied with admissible novelties after the file has been closed. In contrast, facts and evidence that speak against the subject-matter jurisdiction can always be taken into account until the relevant judgment deliberation (Art. 229 para. 3 CPC). The relevant deliberation is the deliberation in which the court makes a binding decision on its jurisdiction.
12 In order for the commercial court to have subject-matter jurisdiction at all, all of the requirements set out in Art. 6 para. 2 CPC must exist simultaneously at least once. A staggered occurrence of individual prerequisites is not sufficient.
4. Perpetuatio fori
13 The principle of perpetuatio fori, according to which the court once competent remains competent for the duration of the proceedings, also applies to subject-matter jurisdiction (then also called perpetuatio competentiae). However, perpetuatio fori does not exclude the possibility that a court that initially lacks jurisdiction may become competent in the course of the proceedings. Thus, there is no perpetuatio fori of lack of jurisdiction.
B. De- and Prorogation and Depositions
14 The subject-matter jurisdiction of the courts is generally mandatory, including that of the commercial court. The subject-matter jurisdiction of the commercial courts is, in principle, exclusive. A choice according to Art. 8 CPC is inadmissible. Both the derogation and the prorogation of the commercial court are therefore invalid.
15 However, Art. 6 para. 3 CPC contains an alternative jurisdiction, which is also mandatory. The fact that a prorogation of the commercial court within the scope of application of Art. 6 para. 3 CPC is thus excluded appears to be correct, since the special features of commercial court proceedings (loss of the cantonal appellate instance, limited cognition of the Federal Supreme Court, specialized court instead of an ordinary court) should not be imposed by the more powerful counterparty on the party entitled to vote, which is usually weaker in the market. However, a derogation of the commercial court is not problematic. In such cases, the electing party would not be subject to a jurisdiction that is more disadvantageous for it - unlike in the case of partially compulsory local courts - but merely to the ordinary jurisdiction.
16 The factual jurisdiction of the commercial courts, which is in principle mandatory and not at the disposal of the parties, also prohibits a plea by the parties. Accordingly, the parties may not plead before the ordinary courts in the context of commercial court disputes, nor before the commercial court in the context of non-commercial court disputes.
C. Court orders of voluntary jurisdiction
17 Commercial courts have jurisdiction only over disputes but not over court orders of voluntary jurisdiction.
18 The commercial courts shall therefore not have jurisdiction in particular for:
the appointment of an expert to examine the work in accordance with Art. 367 para. 2 CO,
the dismissal of judicially appointed liquidators,
the organizational deficiency proceedings referred by the Commercial Registry Offices (as of January 2021),
the ex officio deletions referred by the Commercial Registry Offices in the case of legal entities with no business activity and no assets pursuant to Art. 934 para. 3 CO,
the re-registrations according to Art. 935 CO, and
the cancellation of promissory notes, securities and insurance policies.
19 In contrast, the commercial courts may have jurisdiction over the following disputes:
ordering the provision of information and inspection pursuant to Art. 697b CO,
the appointment of an expert to conduct a special investigation pursuant to Art. 697c para. 2 or the ordering of a special investigation pursuant to Art. 697d para. 1 CO,
the judicial convocation of a general meeting of shareholders,
the dismissal of liquidators in accordance with Art. 741 para. 2 CO, whose mandate is based on law, the articles of association, a company resolution or a contract
the declaration of invalidity pursuant to Art. 137 FinMIA, and
the organizational deficiency proceedings initiated by a shareholder or a creditor.
D. Enforcement
20 Because the commercial courts only have jurisdiction over disputes under substantive law (Art. 6 CPC) and state enforcement is not concerned with the settlement of civil law relationships, but involves the compulsory enforcement of claims under substantive law that have been recognized by the courts or are otherwise enforceable, i.e. it serves to create facts, the commercial courts do not have subject-matter jurisdiction in this regard.
1. Real enforcement
21 However, Art. 236 para. 3 CPC and Art. 267 CPC provide for direct real enforcement that the court of cognizance also directly orders real enforcement measures. These are therefore not issued in separate summary proceedings. Direct enforcement can therefore be regarded as a downstream part of the proceedings and is included in them. Accordingly, the commercial courts have subject-matter jurisdiction for direct enforcement if they also have jurisdiction for the corresponding summary proceedings. If the commercial courts are responsible for direct enforcement, they are also responsible for its execution.
22 Indirect real enforcement, on the other hand, is no longer part of the proceedings for a judgment and is issued in a separate summary proceeding following the judgment proceedings (Art. 338 f. CPC). In contrast to direct enforcement, indirect enforcement proceedings can no longer be assigned to any pending proceedings. In contrast to the precautionary measures prior to the pendency of the proceedings (cf. Art. 6 para. 5 CPC), which are subject to a similar problem, there is also no legal provision according to which the commercial courts would be responsible for the indirect real enforcement of the decisions rendered by them. Therefore, the commercial courts do not have subject-matter jurisdiction for indirect real enforcement.
23 Since direct and indirect real enforcement do not differ in substance, this legal situation is not convincing. De lege ferenda, therefore, a provision modeled on Art. 6 para. 5 CPC is necessary for indirect real enforcement.
2. Judicial matters of debt enforcement and bankruptcy law
24 Purely substantive disputes relating to the SchKG are indeed connected with the debt enforcement proceedings. However, the corresponding decisions have full substantive legal force. They are based on an actual substantive dispute, which means that the commercial courts may have subject-matter jurisdiction, provided that the requirements of Art. 6 CPC are met in the individual case. Disputes under purely substantive law include, for example, actions for recognition and revocation, actions for discontinuation or cancellation of debt collection under Art. 85a SchKG, actions for recovery by the debtor after payment of a non-debt, actions for attachment and actions for damages, e.g. under Art. 273 SchKG.
25 In purely debt collection disputes, substantive law is not decided on the merits. Although they may have a connection with a dispute under substantive law, they have a different subject matter. Therefore, they do not fall under the jurisdiction of the commercial courts. Disputes under purely debt collection law include, for example, the legal opening proceedings, the opening of bankruptcy proceedings and the action to establish the existence of new assets pursuant to Art. 265a SchKG. For the same reasons, this also applies to orders on unilateral application, such as the opening of bankruptcy proceedings in non-contentious cases, the discontinuation of bankruptcy proceedings for lack of assets, the revocation of bankruptcy proceedings and the final judgment.
26 By their nature, disputes under debt collection law with a reflex effect on substantive law must also be classified as disputes under debt collection law and not substantive law. This is because they are not used to bring substantive disputes to a res iudicata; instead, the substantive legal situation is decided only on a preliminary basis, if at all. Disputes under debt collection law with a reflex effect on substantive law therefore do not fall within the jurisdiction of the commercial courts. These include, for example, actions for opposition, segregation, collocation and avoidance.
E. Substantive nature of the claim
27 According to the Federal Supreme Court, the nature of the claim is not a connecting factor for the substantive jurisdiction of the commercial courts under Art. 6 para. 2 CPC. It is correct that Art. 6 para. 2 CPC in principle does not refer to the substantive nature of the claim filed and therefore the commercial courts may have subject-matter jurisdiction irrespective of the substantive qualification of a claim. This means that the commercial courts can have jurisdiction over both contractual and non-contractual claims, e.g. claims under property law, claims in tort and unjust enrichment, claims arising from management without a mandate or from culpa in contrahendo, as well as from a liability based on trust, etc. This principle was amended with the introduction of the new Code of Civil Procedure (CCP).
28 This principle was abandoned with the revision of the CPC adopted in March 2023. Now, disputes arising from an employment relationship, under the Employment Agencies Act, under the Equal Treatment Act, as well as from the rent and lease of residential and commercial premises or from agricultural leases no longer fall within the subject-matter jurisdiction of the commercial courts due to their substantive nature (Art. 6 para. 2 lit. d CPC).
29 Similarly, Art. 6 para. 4 CPC contains a list of substantive claims that are optionally commercial court disputes but not commercial disputes within the meaning of Art. 6 para. 2 CPC. If it were otherwise, and if the optional commercial court disputes were also commercial law disputes according to Art. 6 para. 2 CPC, the commercial courts would have mandatory jurisdiction over these disputes and the right of choice granted to the cantons in Art. 6 para. 4 CPC would be undermined to this extent. Since disputes arising from the law of commercial companies and cooperatives in particular are excluded from Art. 6 para. 2 CPC, this also applies consequently to disputes arising from the other forms of companies whose activities typically have no or only a less close connection to commercial law (e.g. associations and simple partnerships), and to disputes arising from the law of foundations. De lege ferenda, however, it could make sense to grant the cantons the possibility to assign certain of these disputes to the commercial courts. This applies, for example, to disputes in the internal relationship of a construction consortium or to disputes arising from a shareholders' agreement qualifying as a simple partnership.
F. Jurisdiction Attraction and Competing Jurisdictions
30 In the case of a competition of substantive norms, an action may have multiple grounds. If the substantive jurisdiction is also or exclusively based on the relevant legal subject matter, the question may arise as to which court has jurisdiction over what.
31 According to the principle of jurisdiction attraction, the courts must comprehensively assess the facts of the case and also examine those claims for which, considered separately, they would not have jurisdiction (cf. also Art. 57 CPC). In the case of multiple claims, commercial courts must therefore examine all bases of claims, even if they would not have jurisdiction over individual claims if considered separately.
32 Which court has subject-matter jurisdiction to adjudicate a multiply founded claim is not determined by the principle of jurisdictional attraction, but is resolved by the competition of jurisdiction:
Insofar as a commercial court (based on federal law) competes with a court based on cantonal law (ordinary courts), the commercial court's jurisdiction takes precedence. Alternative jurisdiction exists only within the framework of Art. 6 para. 3 CPC, whereby the plaintiff has the right to choose.
In relation to the Federal Patent Court, the competition of jurisdiction is regulated by Art. 26 PatCA. The Federal Patents Court has exclusive jurisdiction over actions for continuance and infringement, as well as actions for the grant of a license relating to patents, the ordering of precautionary measures prior to the pendency of such an action, and the enforcement of such decisions (Art. 26 para. 1 PatCA). If preliminary issues and objections concerning patent nullity and infringement become relevant before a commercial court, they must be submitted to the Federal Patent Court within the time limit, otherwise they will be disregarded (Art. 26 para. 3 PatCA). If the patent nullity or infringement is asserted by way of counterclaim, the counterclaim and the main action shall be referred to the Federal Patent Court (Art. 26 para. 4 PatCA). To this extent, the jurisdiction of the Federal Patent Court takes precedence over that of the commercial courts. If, on the other hand, there is a multiple substantiated action in connection with Art. 26 para. 2 PatCA, there is an alternative between the jurisdiction of the Federal Patent Court and the Commercial Courts, with the plaintiff having the choice.
There is an alternative between the commercial court and a single cantonal instance according to Art. 5 CPC.
The jurisdiction of the single cantonal instance under Art. 7 CPC takes precedence over that of the commercial court.
There is an alternative between the jurisdiction of the commercial court under Art. 6 para. 3 CPC and the single cantonal instance under Art. 8 CPC.
III. Commercial disputes (Art. 6 para. 2 CPC)
33 Art. 6 para. 2 CPC defines when a dispute is commercial. The individual defining characteristics according to Art. 6 para. 2 CPC must be present cumulatively and at least once at the same time (cf. n. 12).
34 Both the concept of a commercial dispute and the individual requirements thereof (Art. 6 para. 2 lit. a-d CPC) are concepts of federal law.
35 A parallel or concurrent jurisdiction regulation of the cantons is excluded due to the mandatory nature of the commercial court jurisdiction. The cantons are also precluded from defining the commercial law dispute more narrowly than is prescribed by federal law, for example by establishing additional requirements for the subject-matter jurisdiction of the commercial courts. However, it is also inadmissible to further circumscribe the commercial law dispute.
A. Commercial activity (Art. 6 para. 2 lit. a CPC)
1. Bases
36 A dispute under commercial law within the meaning of Art. 6 para. 2 CPC is only if it concerns the business activity of a party. Thus, first, the exercise of a business activity by at least one of the parties and, second, the involvement of at least one business activity in the dispute are required.
37 The reference to the business activity is a substantive characteristic of the dispute. The purpose of Art. 6 para. 2 lit. a CPC is to assign to the commercial courts, as specialized courts, as far as possible only those disputes that they can ideally judge more competently on the basis of their specific expertise. In this context, a certain abstraction is essential for the benefit of legal certainty.
38 It is questionable at what point in time the dispute must concern the business activity of a party. The characteristic of the business reference of a dispute is derived from the claim underlying the dispute. It is justified to base the relevant point in time on the period in which the claim arose. It is at this point in time that it is determined whether the dispute is related to the business activity or not. Subsequent discontinuations or commencements of business are thus disregarded.
39 It is not relevant whose business activity is affected as long as this applies to at least one party.
2. Existence of a business activity
40 Business activity means that there must be an enterprise aiming at profit. What is meant is an economic activity aimed at making a profit. The activity also distinguishes the facts of the case from the performance of one-off transactions. The business activity is then to be subsumed under the broader concept of trade. Art. 2 lit. a HRegV defines this as an independent economic activity aimed at permanent acquisition. It is therefore not a question of the narrower concept of trade, the actual craft business, but of the economic gainful activity itself. The intention to make a profit is sufficient. The actual achievement of an acquisition or profit is not necessary. The assessment does not depend on the entry in the commercial register, but solely on the actual activity.
41 Thus, there is no business activity in particular i) if organizations only carry out non-material and no economic activities and are thus not geared to making a profit, ii) in the case of the state service sector, as long as it is not geared to making a profit, even if it is organized under private law (e.g. cantonal hospitals) and iii) if only one-off transactions are carried out, whereby in individual cases a continuing one-off business opportunity may under certain circumstances take on the character of an actual business activity.
42 According to Art. 6 para. 2 CPC, the type of business to which the activity belongs is irrelevant. It may be commercial, industrial, trade or other businesses, producers or service providers, freelancers or even members of the primary sector. It follows from this that commercial courts today are no longer special courts for commercial and business transactions, but courts for general business transactions.
3. Relation to the dispute
43 With the concern of the business activity, a certain relation between the dispute and the business activity of at least one party is required. The relationship need not be strong; direct involvement is not a prerequisite. Rather, an indirect business connection of some kind is sufficient. The dispute may therefore only concern ancillary or auxiliary business. The characteristic performance is not important. In any case, the wording of Art. 6 para. 2 lit. a CPC offers hardly any indications to limit the jurisdiction of the commercial court as soon as one party is a commercial company and its external relations are affected. This solution sacrifices individual case justice in favor of a simple jurisdiction rule and thus legal certainty. A dispute can thus be a commercial dispute within the meaning of Art. 6 para. 2 CPC even if it does not have this characteristic per se.
44 In contrast, there is no reference to business activity in the case of so-called private transactions. Whether a private transaction exists must always be answered from the point of view of both parties: If a private transaction exists for one party, the transaction may nevertheless have a connection with the business activity of the other party. Only if the transaction is a private transaction for both parties, the relation to a business activity in the sense of Art. 6 para. 2 lit. a CPC has to be denied. Especially in the case of owners of a sole proprietorship, a distinction must be made between their private and business spheres, since sole proprietorships do not have legal capacity. The concrete circumstances are decisive.
B. Requirement of the amount in dispute (Art. 6 para. 2 lit. b CPC)
1. Basics
45 Prior to the revision of the CPC adopted in March 2023, aArt. 6 para. 2 lit. b required, according to the wording, that an appeal in civil matters against the decision was open to the Federal Supreme Court. This wording led to numerous ambiguities, some of which remained unresolved until the revision of the CPC. With the new wording, the legislator has created clarity: Art. 6 para. 2 lit. b CPC contains a pure amount in dispute requirement.
46 According to the Federal Supreme Court, the amount in dispute for determining the court's jurisdiction is measured according to the circumstances at the time the action is filed and the amount in dispute requirement must already be met at the time the action is filed. This is not convincing, especially since it is not recognizable why increases in value in the course of the proceedings should not have the effect of establishing jurisdiction. Secondly, according to Art. 91 para. 2 CPC, the parties can agree on the amount in dispute, which, by its very nature, happens only after the commencement of the action. Thirdly, the CPC provides for certain cases that the subject-matter jurisdiction changes with the change of the amount in dispute after the commencement of the action (e.g. Art. 85 para. 2, Art. 227 paras. 2 and 3 CPC). Therefore, the amount in dispute need not reach the required level until the commercial court first decides on its subject-matter jurisdiction.
2. Minimum amount in dispute
47 According to Art. 6 para. 2 lit. b CPC, the amount in dispute must exceed Fr. 30,000.00 for the dispute to qualify as commercial. If the amount in dispute is exactly CHF 30,000.00, there is no dispute under commercial law.
48 Art. 6 para. 2 lit. b CPC expressly states that the amount in dispute requirement applies only to disputes under property law. Accordingly, non-pecuniary disputes are already deemed to be commercial disputes if the business activities of at least one party are affected and the parties are entered in the Swiss Commercial Register or in a comparable foreign register.
3. Proposal de lege ferenda
49 Even before the introduction of the CPC, the four commercial court cantons provided for an amount in dispute requirement for the general jurisdiction of their commercial courts. This served primarily to regulate the business burden of the commercial courts by limiting their subject-matter jurisdiction. This purpose is also served by the amount in dispute requirement of Art. 6 para. 2 lit. b CPC, especially since the legislator was guided by the previous cantonal provisions. However, the business burden of the commercial courts is not a matter of federal law, but of cantonal law. The regulation by federal law is therefore questionable. Moreover, the rather high amount in dispute requirement of more than CHF 30,000.00 - due to the lack of a sufficient business burden - is likely to prevent the introduction of new commercial courts in other cantons, although it was an important concern of the Federal Council when introducing the CPC to upgrade the commercial jurisdiction. Moreover, it is not quite comprehensible why a federal litigation requirement applies only to commercial disputes under Art. 6 para. 2 CPC, but not to the optional commercial court disputes under Art. 6 para. 4 CPC.
50 Accordingly, it would be worth considering abandoning Art. 6 para. 2 lit. b CPC and leaving it to the cantons to provide, if necessary, for a dispute value requirement to regulate the business burden or to dispense with such a requirement due to its systemic inconsistency.
C. Entry in the Commercial Register (Art. 6 para. 2 lit. c CPC)
1. Principles
51 The purpose of Art. 6 para. 2 lit. c CPC is to restrict access to the Commercial Court to persons who are entered in the Commercial Register, exempting them from proving that they are merchants or traders.
52 The only thing that matters is the actual entry. The reasons for the entry are irrelevant. It may have been made on the basis of an obligation to register or voluntarily, it may have had a constitutive or merely declaratory effect, it may have been justified, unjustified, incorrect or made ex officio. It is also irrelevant for what reasons a possible entry in the commercial register has not yet been made. The existence of an obligation to make an entry is not sufficient to establish the subject-matter jurisdiction of the commercial courts.
53 Entries in the Swiss commercial register are obvious and therefore need neither be asserted nor proven. For entries in foreign registers this applies only exceptionally, because these are often not easily accessible or only at a high cost.
54 The parties must be entered in the commercial register at the latest at the time when the commercial court first decides on its subject-matter jurisdiction or before the start of the corresponding judgment deliberations. Due to the perpetuatio fori, a subsequent deletion from the Commercial Register does not cause the factual jurisdiction of the Commercial Court, once established, to lapse. However, such a deletion may establish the jurisdiction of an ordinary court in proceedings before it. If an ordinary court once had jurisdiction, it remains so, even if all the requirements of Art. 6 para. 2 CPC were met following a subsequent entry of a party in the Commercial Register (perpetuatio fori).
55 The requirement of entry in the commercial register refers to the parties. In particular, the party representatives are not parties, which is why only the entry of the represented party is relevant in representation cases. Furthermore, according to Art. 6 para. 2 lit. c CPC, both parties must be entered in the Commercial Register. If only the defendant is registered in the Commercial Register, the plaintiff has the choice according to Art. 6 para. 3 CPC. However, if only the plaintiff party is registered, the dispute is not a commercial dispute from the outset.
2. Entry in the Swiss Commercial Register
56 The wording of Art. 6 para. 2 lit. c CPC, as amended by the revision of the CPC adopted in March 2023, requires that the parties be registered as legal entities in the Commercial Register. Accordingly, it is no longer the company name that is to be taken into account, but the legal entity within the meaning of Art. 927 para. 2 CO. The entry in the commercial register does not have to show the party as a company or subject that carries on a trade, manufacturing business or other business conducted in a commercial manner within the meaning of Art. 931 CO.
57 The following commercial register entries are therefore deemed sufficient:
sole proprietorships,
general partnerships,
limited partnerships,
stock corporations,
limited partnerships,
limited liability companies,
cooperatives,
associations,
foundations,
limited partnerships for collective investment,
investment companies with fixed capital,
investment companies with variable capital,
institutions under public law, and
branches.
58 With regard to sole proprietorships, it should be added that, although only they - and not their owners - are entered in the Commercial Register as a legal entity, it is not they but their owners who are parties to the civil proceedings. However, the CPC revision was not intended to exclude the owners of sole proprietorships from the jurisdiction of the commercial court, so that no legal consequences regarding jurisdiction can be derived from this inaccuracy. Thus, if the entry in the commercial register as the owner of a sole proprietorship satisfies the requirements of Art. 6 para. 2 lit. c CPC and the dispute concerns the business activities of the other party, the owners of sole proprietorships do not have a right of choice under Art. 6 para. 3 CPC even for private matters and may have to answer to the commercial courts for such matters as well.
59 As far as branches are concerned, they have no independent personality; they are not capable of being parties within the meaning of Art. 66 CPC. Their entry in the commercial register is therefore irrelevant. If the dispute relates to a branch, the entry in the commercial register of the person of which the branch is a part must be taken into account.
60 If the entry of a legal entity in the Commercial Register is supplemented with the addition "in liquidation", it is nevertheless still registered within the meaning of Art. 6 para. 2 lit. c CPC. In my opinion, if a person falls into bankruptcy, this person remains the relevant party to the proceedings, but is now represented by the bankruptcy administration to the extent of the bankruptcy estate. There is neither a change of parties nor a procedural status. Nor is the bankruptcy estate as such a party to the proceedings. Accordingly, only the entry in the commercial register of the bankrupt is relevant (disputed).
61 Because the following commercial register entries are not legal entities, they do not satisfy the requirements of Art. 6 para. 2 lit. c CPC:
entries as corporate bodies (e.g., members of the board of directors), representatives (e.g., authorized signatories, directors) or as persons with similar functions (e.g., administrators), and
entries as partners of partnerships and legal entities (e.g. general partners, managing partners).
3. Entry in a comparable foreign register
62 According to Art. 6 para. 2 lit. c CPC, an entry in a "comparable foreign register" is equivalent to an entry in the Swiss commercial register. However, even in this case, an entry in the register is required, which is why evidence of any kind as to whether a party is recognized as a commercial enterprise abroad is not sufficient. In my opinion, an entry in the comparable foreign register as a legal entity is not required, since the term "legal entity" explicitly refers to the terminology of Swiss commercial register law.
63 In practice, the comparability of the registers is generously affirmed. So far, for example, the registers of the following countries or territories have been considered comparable - sometimes only implicitly: Anguilla, Bermuda, Denmark, Germany, England, French Polynesia, Greece, Iceland, Israel, Italy, Latvia, Liechtenstein, Netherlands, Austria, Singapore, California Secretary of State database.
64 Although the comparability of registers is a question of law, the available decisions hardly ever state why comparability was affirmed. It seems as if the comparability of the registers is presumed as soon as it is a register of companies. The mere assertion that a company is registered in a foreign register, on the other hand, is not sufficient.
65 In itself, the same principles apply to an entry in a comparable foreign register as to an entry in the Swiss commercial register. The foreign register must therefore serve to record and make accessible information under commercial law in order to identify individual legal entities on the basis of their central features, such as company name, registered office, purpose, powers of representation or similar, and to provide information about their legal existence. However, since the foreign register only has to fulfill approximately the same function as the Swiss commercial register, the information does not have to be free of charge or accessible on the Internet, nor does it have to be as detailed as that of the Swiss commercial register. It is also not necessary that the foreign register serves the protection of third parties or has a publicity effect within the meaning of Art. 936b CO, because these are not the reasons why Art. 6 para. 2 lit. c CPC refers to the commercial register entry. Who prepares the foreign register extract is also irrelevant. Courts, foreign authorities, consulates or also private persons (e.g. chambers of commerce) can be considered. It is also irrelevant how the foreign register extract is titled. However, so-called certificates of incumbency are likely to be insufficient, since they usually only provide information about the officers of a company.
D. Excluded Disputes (Art. 6 para. 2 lit. d CPC)
66 With the introduction of Art. 6 para. 2 lit. d CPC as part of the revision of the CPC adopted in March 2023, a new criterion - and for the first time a negative criterion - was introduced to define a commercial dispute.
67 From now on, disputes arising from an employment relationship, under the Employment Agency Act, under the Equal Treatment Act, or from the rent and lease of residential and commercial premises or from agricultural leases will no longer constitute disputes under commercial law. This exclusion presumably does not apply to disputes arising from collective labor law, especially since these are not disputes arising from an employment relationship.
IV. Right of choice of the unregistered plaintiff (Art. 6 para. 3 CPC)
68 If only the defendant is registered within the meaning of Art. 6 para. 2 lit. c CPC, but the other requirements of Art. 6 para. 2 lit. a and b are met and those of Art. 6 para. 2 lit. d CPC are not met, the plaintiff may choose between the commercial court and the ordinary court in accordance with Art. 6 para. 3 CPC. The business activities of the plaintiff need not be affected in this case as long as those of the defendant are affected. The plaintiff does not even need to be engaged in business activities. Therefore, actions by consumers, bank and insurance customers, victims (e.g. accident victims, victims of faulty medical interventions) etc. are eligible, but not those by employees, tenants and leaseholders within the meaning of Art. 6 para. 2 lit. d CPC.
69 If, on the other hand, only the plaintiff and not the defendant is registered, the dispute is not a commercial dispute and there is no right of election within the meaning of Art. 6 para. 3 CPC. This also applies in the case of an action for disqualification, where the roles of the parties are reversed.
V. Optional Commercial Court Disputes (Art. 6 para. 4 CPC)
70 According to Art. 6 para. 4 CPC, the cantons may declare their commercial court competent for a) disputes under Art. 5 para. 1 CPC, b) disputes arising from the law of commercial companies and cooperatives, and c) certain international disputes.
71 Here, the requirements of Art. 6 para. 2 lit. a-d CPC do not play a role. However, the terms used in the context of Art. 6 para. 4 CPC are also those of federal law. The central difference to commercial disputes under Art. 6 para. 2 CPC lies in the fact that the cantons are free in their decision to declare their commercial courts to have subject-matter jurisdiction also for disputes under Art. 6 para. 4 CPC.
72 Art. 6 para. 4 lit. a CPC refers directly to Art. 5 para. 1 CPC and Art. 6 para. 4 lit. b CPC indirectly to Art. 552-926 CO. In my opinion, these are dynamic references, i.e. references to the respective applicable version of these provisions.
73 It has not yet been fully clarified what exactly the cantons' right to choose pursuant to Art. 6 para. 4 CPC comprises. Certainly, the cantons can choose whether their commercial court has jurisdiction only for disputes under Art. 6 para. 4 lit. a CPC, only for those under lit. b, only for those under lit. c, for none of them, or for any combination of them (e.g., only for those under lit. a and b).
A. Disputes under Article 5(1) CPC
74 With Art. 6 para. 4 lit. a CPC, the CPC refers directly to the disputes listed in Art. 5 para. 1 CPC. This is a hodgepodge of special disputes from which the cantons may select individual ones and assign them to the commercial courts.
75 In this context, the cantons are free to designate their commercial courts as having jurisdiction only for disputes of individual letters listed (Art. 5 para. 1 lit. a-i CPC). Thus, all four commercial courts have jurisdiction for disputes under Art. 5 para. 1 lit. a, b, c, d, g and h CPC, only the commercial courts of the cantons of Aargau and Zurich have jurisdiction for disputes under Art. 5 para. 1 lit. e CPC, and only the commercial court of the canton of Bern has jurisdiction for disputes under Art. 5 para. 1 lit. i CPC. It would not make much sense, but based on the previous cantonal regulations, which the legislator has followed, it would be permissible to differentiate even further within the framework of Art. 5 para. 1 lit. a and i CPC according to the individual legal bases, e.g. the disputes arising from the individual intellectual property laws. However, due to the purpose of concentrating legal and technical knowledge, a further division of subject matter jurisdiction even within the individually listed laws does not seem permissible.
76 Whether the cantons can make the jurisdiction of their commercial courts for disputes under Art. 5 para. 1 CPC dependent on an amount in dispute limit has not yet been clarified. It is true that the CPC dispatch states that the cantons may declare their commercial courts competent for disputes under Art. 5 CPC as well as, more generally, for disputes arising from corporate law as well as investment fund and bond law, whereby they are free to set dispute value limits for these matters. However, the purpose of having a single cantonal instance responsible for disputes under Art. 5 para. 1 CPC is to concentrate legal and professional knowledge. This purpose is better achieved if the subject-matter jurisdiction is not divided on the basis of dispute value limits. Accordingly, the CPC - with the exception of Art. 5 para. 1 lit. d and f CPC - does not provide for limits on the amount in dispute for disputes under Art. 5 para. 1 CPC, if a single cantonal instance other than a commercial court decides on them. Why anything else should apply to the jurisdiction of the commercial court is not apparent. Therefore, in my opinion, the cantons may not provide for limits on the amount in dispute within the framework of Art. 6 para. 4 lit. a CPC.
B. Disputes arising from the law of commercial companies and cooperatives
77 With Art. 6 para. 4 lit. b CPC, the CPC refers to disputes that may arise from Art. 552-926 CO. This does not include, in particular, disputes arising from a contract of sale of shares, a shareholders' agreement, a simple partnership, from associations and concerning foundations.
78 If the cantons have declared their commercial courts competent for disputes pursuant to Art. 6 para. 4 lit. b CPC, they may not restrict this jurisdiction in factual terms according to the Federal Supreme Court. Only the introduction of limits on the amount in dispute is permissible. This is not convincing: It is not recognizable that the legislator intended to harmonize the heterogeneous jurisdiction in this area that prevailed in the four commercial court cantons prior to the introduction of the CPC. However, it hardly makes sense to exclude individual disputes. A current example is the jurisdiction regulation of the canton of Bern, according to which so-called organizational deficiency proceedings are excluded from the jurisdiction of the commercial court. According to the case law of the Federal Supreme Court, this exception would be contrary to federal law. In contrast, an extension of the jurisdiction of the commercial court pursuant to Art. 6 para. 4 lit. b CPC, e.g. to disputes arising from simple partnerships, associations or foundations, is not permissible.
79 In addition, the cantons are entitled under Art. 6 para. 4 lit. b CPC - in contrast to Art. 6 para. 4 lit. a CPC - to provide for an amount in dispute requirement. However, due to the concentration of knowledge in these cases, a limit on the amount in dispute seems questionable here as well. Currently, the two cantons of Bern and Zurich each provide for a minimum amount in dispute of CHF 30,000.00 for disputes under Art. 6 para. 4 lit. b CPC.
C. International disputes
80 With Art. 6 para. 4 lit. c CPC, the cantons were given the possibility, within the framework of the revision of the CPC adopted in March 2023, to declare their commercial courts also competent for certain international disputes. This is intended to lay the foundation for creating specialized courts or court chambers (e.g. the commercial courts) for international commercial disputes.
81 The special feature of Art. 6 para. 4 lit. c CPC is that the parties can prorogate the subject-matter jurisdiction of the commercial court - contrary to the principle according to which this is mandatory (cf. n. 14) (Art. 6 para. 4 lit. c no. 3 CPC). According to the intention of the legislator, it is also possible to plead to the Commercial Court. However, the admissibility of prorogation presupposes the existence of the requirements of Art. 6 para. 4 lit. c no. 1, 2 and 4 CPC. I.e. the dispute must concern the business activity of at least one party (no. 1), be property-related, have an amount in dispute of at least CHF 100,000.00 (no. 2) and at least one party must have its domicile or habitual residence or its registered office abroad at the time of the prorogation of the commercial court (no. 4).
82 Contrary to the requirement of Art. 6 para. 2 lit. c CPC, an entry in the commercial register of both parties is not required. On the contrary, if both parties are entered in the Commercial Register or a comparable foreign register, the Commercial Court has mandatory subject-matter jurisdiction anyway pursuant to Art. 6 para. 2 CPC - with the exception of cases under Art. 6 para. 2 lit. d CPC. Thus, Art. 6 para. 4 lit. c CPC should remain irrelevant for the majority of international commercial disputes. Nor does this provision deal with international and local jurisdiction. Thus, as before, both international and local jurisdiction must exist in a commercial court canton. If this is the case, however, international disputes under Art. 6 para. 4 lit. c CPC already mostly fall under the substantive jurisdiction of the commercial courts on the basis of Art. 6 para. 2 CPC.
83 Accordingly, Art. 6 para. 4 lit. c CPC applies only to cases in which either the defendant is not registered in the Commercial Register or in a comparable foreign register or, if it is registered, to disputes arising from labor, tenancy and lease law under Art. 6 para. 2 lit. d CPC. Moreover, if only the defendant is registered in the Commercial Register or a comparable foreign register, Art. 6 para. 4 lit. c CPC represents an excess over Art. 6 para. 3 CPC insofar as a prior proration of the Commercial Court is also binding.
84 The scope of application of Art. 6 para. 4 lit. c CPC is therefore small. The actual innovation concerning international disputes lies rather in the possibility of choosing English as the language of proceedings (Art. 129 para. 2 lit. b CPC; limited also to Art. 42 para. 1bis BGG) as well as in the enactment of Art. 5 para. 3 lit. c PILA.
VI. Other commercial court matters
85 The cantons are free to declare their commercial courts competent to hear disputes outside the scope of Art. 6 CPC within the scope of the CPC (cf. Art. 1 CPC). In these cases, however, the commercial courts would not rule as the sole cantonal instance and therefore not as a commercial court within the meaning of Art. 6 para. 1 CPC in the absence of a legal basis for an exception to the principle of dual cantonal jurisdiction.
86 Even outside the scope of the CPC, the cantons are free, within the scope of their competences, to declare their commercial courts competent for other matters. For example, the Commercial Court of the Canton of Aargau also has jurisdiction to hear appeals against orders of the Commercial Registry Office pursuant to Art. 942 CO or for disputes assigned to a court pursuant to the HRegV. The latter also applies to the Commercial Court of the Canton of St. Gallen.
87 Likewise, according to Art. 191b para. 2 FC, the cantons are free to establish a joint commercial court on the basis of a concordat.
VII. Precautionary measures and precautionary taking of evidence
88 According to Art. 6 para. 5 CPC, the commercial court is also competent to order precautionary measures prior to the lis pendens of an action. Due to its systematic position, this jurisdiction relates both to commercial disputes under Art. 6 para. 2 CPC and to disputes under Art. 6 para. 3 CPC and optional commercial court disputes under Art. 6 para. 4 CPC.
89 The decisive factor is whether the commercial court would have subject-matter jurisdiction in the main case. If the jurisdiction on the merits is affirmed, the commercial court is also competent to order precautionary measures before the pendency of the main action. The justification for this jurisdiction attraction is the interest in a uniform procedure or procedural economy. It automatically follows that the commercial courts are not only competent to order precautionary measures prior to the pendency of the main action, but also for those during the pendency of the main action.
90 If the commercial courts are competent to order precautionary measures, this also applies to the ordering of superprovisional measures under Art. 265 CPC and to the receipt of protective writs under Art. 270 CPC.
91 Likewise, the commercial courts are competent to take precautionary evidence before and during the pendency of a main case for which they have subject-matter jurisdiction.
VIII. Special constellations
A. Relationship to the simplified procedure
92 Certain disputes fall simultaneously within the scope of application of the simplified procedure and within the subject-matter jurisdiction of the commercial courts. Since the commercial courts do not apply the simplified procedure (Art. 243 para. 3 CPC), the question arises as to how this overlapping area should be handled. Even before the revision of the CPC, the Federal Supreme Court ruled that the provisions on the type of proceedings take precedence over those concerning the subject-matter jurisdiction of the commercial courts, with the consequence that commercial courts do not have jurisdiction in the overlapping area.
93 With the revision of Art. 6 para. 2 CPC adopted in March 2023, part of this overlapping area was eliminated. Currently, the following overlaps can still be identified:
Disputes under Art. 243 para. 2 lit. b, d and f CPC with an amount in dispute of more than CHF 30,000.00, provided that the business activity of at least one party is affected and at least the defendant is entered in the commercial register,
disputes pursuant to Art. 243 para. 2 lit. b, d and f CPC with an amount in dispute of more than CHF 100,000.00, provided that the business activity of at least one party is affected, the parties have prorogated the Commercial Court and at least one party had its domicile or habitual residence or its registered office abroad at the time of prorogation,
disputes pursuant to Art. 5 para. 1 CPC with an amount in dispute of up to CHF 30,000.00, insofar as the commercial courts have been declared competent pursuant to Art. 6 para. 4 lit. a CPC, and
disputes arising from the law of commercial companies and cooperatives with an amount in dispute of up to Fr. 30,000.00 (AG and SG) or of exactly Fr. 30,000.00 (BE and ZH).
94 It can be assumed that the previous case law of the Federal Supreme Court, according to which the type of proceedings takes precedence over the subject-matter jurisdiction of the commercial courts, will remain applicable in the context of these overlaps, especially since the revision of the CPC has not changed the basis of the Federal Supreme Court's reasoning. Admittedly, the Federal Supreme Court had not explicitly judged any case of Art. 6 para. 4 CPC so far. However, it recently held that its case law applies to all matters to which the simplified procedure applies pursuant to Art. 243 para. 1 and 2 CPC, which also includes disputes under Art. 6 para. 4 lit. a, b and c CPC.
B. Amendment of the action
95 According to Art. 227 para. 1 CPC, an amendment of a claim is admissible if the amended or new claim is to be judged according to the same type of procedure and has a factual connection with the previous claim or if the opposing party consents.
96 The CPC does not expressly regulate whether an amendment of a claim requires the same subject-matter jurisdiction of the original claim and the amended claim. Article 227 para. 2 CPC states that the court originally seized shall transfer the case to the court with the higher subject-matter jurisdiction if the amount in dispute of the amended action exceeds the subject-matter jurisdiction of the court originally seized. Thus, an amendment of the action does not require the same subject-matter jurisdiction of the original and the amended action, if this is purely related to the value of the dispute. In this case, it should be added that the change in the value of the claim must not lead to the application of another type of proceedings, otherwise the change in the claim would already be inadmissible on the basis of Art. 227 para. 1 CPC.
97 What applies if the subject-matter jurisdiction for the original and the amended action diverge due to the nature of the dispute has not yet been clarified. In the doctrine, the view is expressed that an amendment of the action is excluded in the case of a purely dispute-related change of subject-matter jurisdiction. In my opinion, however, there is no reason why it should not be possible to remedy an original lack of subject-matter jurisdiction by amending the action, even if the original and the amended action are subject to a different subject-matter jurisdiction. This is because the institution of the amendment of the action was created, in particular, for reasons of procedural economy. It is not considered reasonable to limit the plaintiff to the original action and, if necessary, to provoke another lawsuit concerning the amended action. In such cases, it would make no sense to deem the amendment inadmissible, to dismiss the original action for lack of subject-matter jurisdiction, and then to adjudicate the "amended" action in a new trial as a new action on the merits.
C. Withdrawal of action
98 A withdrawal of the action or a limitation of the action, as formulated in Art. 227 para. 3 CPC, is possible at any time and, according to the law, is not subject to any preconditions. If the action is only partially withdrawn, the court seized of the action remains competent pursuant to Art. 227 para. 3 CPC (perpetuatio fori). There is no transfer to another court. Consequently, it is not necessary that the commercial courts would also have subject-matter jurisdiction for the part of the action that remains after the action has been withdrawn if it were brought as an independent action.
99 If, for example, an action for payment of CHF 100,000.00 is withdrawn by CHF 80,000.00, the commercial court remains competent to judge the remaining part of the action above CHF 20,000.00. The fear that in this case an appeal in civil matters could no longer be filed against the decision of the Commercial Court due to Art. 74 para. 1 lit. b BGG, but only the subsidiary constitutional appeal, is unfounded. This is because the appeal in civil matters is admissible against decisions of the Commercial Court irrespective of the amount in dispute (see Art. 74 para. 2 lit. b BGG).
D. Legal succession before lis pendens
100 Since a transfer of rights before the pendency of proceedings (e.g. by assignment) does not change the content of the dispute and thus its business connection, it has no influence on the requirement of the business activity being affected. Accordingly, the dispute must concern either the business activity of the counterparty of the legal successor or that of the - in case of several successive transfers of rights original - legal predecessor. This applies despite the clear wording of Art. 6 para. 2 lit. a CPC, because this provision - unlike Art. 6 para. 2 lit. c CPC - is not intended to control access to persons, but to control the content. The legal succession before lis pendens also has no influence on the amount in dispute requirement. This applies even if a claim is sold at a discount of, for example, 10%.
101 As far as the requirement of an entry in the Commercial Register is concerned, however, this relates to the legal successor itself, since it is it that seeks access to the Commercial Court as a party in place of the legal predecessor (or against which access is sought before the Commercial Court). The entry in the Commercial Register of the legal predecessor is irrelevant. If the legal successor acts on the defendant's side, it must be registered in the Commercial Register, otherwise the Commercial Court has no jurisdiction under Art. 6 para. 2 and 3 CPC. If, on the other hand, the legal successor that is not registered in the Commercial Register acts as the plaintiff, it may invoke its right of choice under Art. 6 para. 3 CPC.
E. Change of Party
102 A change of party occurs if an existing party withdraws from the proceedings with the simultaneous accession of a person who was not previously involved in the proceedings as a party. Its admissibility is regulated in Art. 83 CPC. The purpose of a change of parties is to continue the proceedings with another party after the change; the legal relationship between the parties is transferred. The new party takes up the proceedings as they are. The justification for the admissibility of a change of party derives from procedural economy.
103 It follows from this that a commercial court with subject-matter jurisdiction cannot become without subject-matter jurisdiction as a result of a change of party (perpetuatio fori). Therefore, neither the entry in the commercial register of the entering party nor a possible discontinuation of the entry in the commercial register of the withdrawing party is relevant. It is equally irrelevant whether the dispute concerns the business activity of the entering party, as long as that of the withdrawing party or the other party is affected.
104 If, on the other hand, the commercial court did not have subject-matter jurisdiction before the change of parties and has not yet ruled on this, its jurisdiction may be established by the change of parties, for example, if the entering party, unlike the exiting party, is entered in the commercial register.
F. Litigation status
105 Since the existence of a litigant status does not change the content of the dispute and thus its business connection, it has no influence on the requirement that the business activity be affected. Accordingly, the dispute must concern either the business activity of the opposing party of the litigant or that of the materially entitled person not participating in the lawsuit as a party. This applies again (cf. n. 100) despite the clear wording of Art. 6 para. 2 lit. a CPC, because this provision - unlike Art. 6 para. 2 lit. c CPC - is not intended to control access to persons, but to control the content. The litigant status also has no influence on the amount in dispute requirement.
106 As far as the requirement of entry in the commercial register is concerned, however, this relates to the litigant itself, since it is the litigant who seeks access to the commercial court as a party instead of the materially entitled person (or against whom access is sought before the commercial court). The entry in the Commercial Register of the substantively authorized person is irrelevant. If the litigant acts on the defendant's side, he must be registered in the Commercial Register, otherwise the Commercial Court has no jurisdiction under Art. 6 para. 2 and 3 CPC. If, on the other hand, the litigant who is not registered in the Commercial Register acts as the plaintiff, it may invoke its right of choice under Art. 6 para. 3 CPC.
G. Necessary joint litigation
107 Necessary joint litigation is admissible if it is required by substantive law (Art. 70 para. 1 CPC). The procedural law does not impose any additional requirements on its admissibility, because a separation of the necessary joint litigation would result in the dismissal of the respective actions due to a lack of active or passive legitimacy and would therefore prevent the realization of the substantive right. It follows from this that the necessary joinder of parties does not presuppose the same subject-matter jurisdiction for each of the necessary joinder of parties. Rather, the question merely arises as to which court has subject-matter jurisdiction in the case of active or passive necessary joinder of parties, if none of them, considered individually, would have subject-matter jurisdiction for all necessary joinder of parties.
108 As far as the business activity is concerned, it is sufficient if either the business activity of the other party to the necessary joint venture or the business activity of only one of the necessary joint venturers is concerned. With regard to the entry in the Commercial Register, a distinction must be made between active and passive necessary joint litigants: While it is open to active necessary disputants not registered in the Commercial Register to invoke their right of choice under Art. 6 para. 3 CPC, the Commercial Courts have jurisdiction under Art. 6 paras. 2 and 3 CPC in the case of passive necessary disputants only if all disputants are registered in the Commercial Register. On the other hand, the necessary joinder of parties has no influence on the amount in dispute.
H. Simple cooperative litigation
109 Whether, in the area of commercial jurisdiction, the same subject-matter jurisdiction for the subjectively clustered actions constitutes a prerequisite for simple joinder in dispute is not clearly regulated: On the one hand, according to the revision adopted in March 2023, Art. 71 para. 1 lit. c CPC states that simple joint litigation is only admissible if the same court has subject-matter jurisdiction over the individual actions. Thus, the case law of the Federal Supreme Court was transferred to the CPC, according to which the same subject-matter jurisdiction is an implicit prerequisite for simple joint litigation. On the other hand, Art. 6 para. 6 CPC also incorporated into the CPC the case law of the Federal Supreme Court, according to which the jurisdiction of the Commercial Court was not intended to prevent simple joint litigation within its scope of application and the cantons were allowed to provide for a uniform subject-matter jurisdiction for simple passive litigants, whereby the Commercial Court could not be involved if it did not have jurisdiction over all litigants. This jurisprudence was issued only in respect of simple passive joint litigants. However, the newly included provision of Art. 6 para. 6 CPC is also intended to regulate active simple joinder of parties.
110 Based on this starting position, I believe that the following situation must be assumed: Contrary to Art. 71 para. 1 lit. c CPC, according to the revision adopted in March 2023, a simple joint litigation does not presuppose the same subject-matter jurisdiction of the subjectively clustered actions if one part of them falls under the jurisdiction of the ordinary courts and the other part under the jurisdiction of the commercial courts due to the lack of entries in the commercial register. In this constellation of cases, the simple joint litigation is peculiarly admissible despite the difference in subject-matter jurisdiction. Based on Art. 6 para. 6 CPC, the ordinary courts have jurisdiction in these cases. The situation becomes complicated if the same type of procedure is not applicable to the individual actions. In these cases, passive simple joinder of parties is excluded. However, based on the Federal Supreme Court's case law on the addition of the amounts in dispute to determine the type of proceedings in the case of an objective accumulation of claims, active simple joint litigation should also be permissible according to the legislator's intention if the type of proceedings merely diverges due to the amount in dispute, which is difficult to reconcile with Art. 93 para. 2 CPC. After all, in such cases, even according to the case law of the Federal Supreme Court, those subjectively clustered claims that have an amount in dispute of no more than CHF 30,000.00 are still to be dealt with in the simplified procedure. Since the simplified procedure does not apply before the commercial courts, they will not be competent for such cases. Accordingly, a simple joint litigation before a commercial court within the scope of Art. 6 para. 2 and 3 CPC requires that all subjectively clustered claims have an amount in dispute of more than Fr. 30,000.00, all passive simple joint litigants are registered in the Commercial Register or in a comparable foreign register, any active simple joint litigants not registered in the Commercial Register exercise their right of election under Art. 6 para. 3 CPC and, with respect to each subjectively clustered claim, at least one party's business activity is affected.
111 The dispatch on the draft revision of the CPC clarifies that Art. 6 para. 6 CPC applies only in the context of commercial law disputes and not also to optional commercial court disputes. Thus, in the context of Art. 6 para. 4 CPC, Art. 71 para. 1 lit. c CPC applies. In this area, simple joint litigation is thus excluded if the commercial court does not have subject-matter jurisdiction for all disputes.
I. Main Intervention
112 Admittedly, according to the case law of the Federal Supreme Court, the general procedural requirements of Art. 59 CPC must be fulfilled for the main intervention. However, Art. 73 para. 1 CPC contains a special provision on subject-matter jurisdiction in that only the court before which the first action is pending has subject-matter jurisdiction to deal with the main intervention action.
113 If the first action is pending before a commercial court, it is therefore irrelevant with regard to the main intervention action whether the requirements of Art. 6 para. 2 CPC are fulfilled, e.g. because the plaintiff in the first action - passive sui generis intervener in the main intervention action - is not entered in the commercial register on the basis of Art. 6 para. 3 CPC. Although this is not unproblematic due to the peculiarities of the commercial court proceedings, it can be compared to the situation of a conjoined counterclaim, which the Federal Supreme Court has deemed admissible. Since the main intervention has to refer to the same subject matter as that of the first lawsuit, it is always related to the first lawsuit.
J. Subsidiary intervention
114 An ancillary intervention occurs when a third party supports one of the main parties in a pending civil action in its own name either on its own initiative (cf. Art. 74 et seq. CPC) or in response to a simple notice of dispute (Art. 79 para. 1 lit. a CPC). In this case, the intervening party is deemed to be an ancillary party. The intervening party as a mere ancillary party does not have party status, since he neither seeks legal protection in his own name nor is legal protection sought against him.
115 Since intervening parties are not parties, the requirement of entry in the Commercial Register does not apply to them under Art. 6 para. 2 and 3 CPC, nor does it matter whether the dispute concerns their business activity or not. This applies irrespective of whether it is a dependent or independent or contentious ancillary intervention. The subsidiary intervention also has no influence on the amount in dispute requirement (Art. 6 para. 2 lit. b CPC).
K. Simple notice of dispute
116 The simple notice of intervention consists in the request of a party - or a person called to litigate - to a third person whom he intends to sue in case he loses, to support him in the litigation (Art. 78 CPC). We have already spoken about the person called in dispute acting as an intervening party pursuant to Art. 79 para. 1 lit. a CPC (cf. n. 115). If, on the other hand, the person called to dispute does not allow himself to be heard or refuses to support the person announcing the dispute in the proceedings (cf. Art. 79 para. 2 CPC), he does not participate in the proceedings. The question of their influence on the subject-matter jurisdiction of the commercial courts then does not arise.
117 If, on the other hand, the person called to dispute decides to conduct the proceedings on behalf of the party (Art. 79 para. 1 lit. b CPC), it has not yet been definitively clarified whether he does so as a mere representative or as a party to the proceedings. If it acts as a mere representative of the party announcing the dispute, this has no influence on the subject-matter jurisdiction of the commercial courts. If, however, it is assumed that there is a change of party, with or without a simultaneous change of party, reference can be made to the corresponding explanations on the change of party and the change of party (cf. n. 105 f. and 102 ff.).
L. Action for notice of discontinuance
118 An action for notice of a dispute is only admissible if the same court has subject-matter jurisdiction for both the main action and the action for notice of a dispute (Art. 81 para. 1 lit. b CPC). Accordingly, the requirements of Art. 6 CPC must also be met for the action for notice of dispute brought before a commercial court.
M. Objective heaping of actions
119 Objective aggregation of actions is admissible if the same court has subject-matter jurisdiction over all aggregated claims and the same type of proceedings is applicable (Art. 90 para. 1 CPC). It is also admissible if a difference in subject-matter jurisdiction or type of proceedings is based solely on the amount in dispute (Art. 90 para. 2 CPC). A factual connection between the individual claims is not required.
120 Thus, for the admissibility of an objective aggregation of claims before the Commercial Court, it is in principle (Art. 90 para. 1 CPC) a prerequisite that the subject-matter jurisdiction is fulfilled with respect to each of the aggregated claims and that the simplified type of proceedings is not applicable. Exceptionally (Art. 90 para. 2 CPC), the objective aggregation of claims before the Commercial Court is also admissible if the individual claims - e.g. based on Art. 6 para. 2 lit. b CPC - are subject to a different subject-matter jurisdiction or a different type of proceedings due to the value of the dispute, but otherwise the requirements of the subject-matter jurisdiction of the Commercial Courts are met. As an example, the combination of a claim for payment of CHF 50,000.00 with a claim for payment of CHF 3,000.00 may be mentioned.
121 It remains questionable how to treat the constellation in which none of the claims fulfills the amount in dispute requirement of Art. 6 para. 2 lit. b CPC on its own, but the combined claims do. As an example, the combination of a claim for payment of Fr. 25,000.00 with a claim for payment of Fr. 10,000.00 may be mentioned. The admissibility of the objective accumulation of claims pursuant to Art. 90 CPC does not pose a problem here, since both claims fall within the subject-matter jurisdiction of the ordinary courts and within the scope of application of the simplified procedure pursuant to Art. 243 para. 1 CPC. However, the Federal Supreme Court held in BGE 142 III 788 E. 4.2.3 that Art. 93 CPC is also applicable when it comes to the determination of the subject-matter jurisdiction and the type of proceedings and that this provision may lead, inter alia, to a change of both the subject-matter jurisdiction and the type of proceedings in case of an objective accumulation of actions. According to Art. 93 para. 1 CPC, the amounts in dispute of the asserted claims are added together, unless they are mutually exclusive. This means for the above example that for the determination of the subject-matter jurisdiction and the type of proceedings an amount in dispute of CHF 35,000.00 has to be assumed, which fulfills the amount in dispute requirement of Art. 6 para. 2 lit. b CPC and excludes the scope of application of the simplified procedure according to Art. 243 para. 1 CPC. Thus, the Commercial Court is factually competent for the objectively aggregated claims.
N. Counterclaim
122 Pursuant to Art. 224 para. 1 CPC, the defendant may raise a counterclaim in its statement of defence if the claim asserted is to be assessed according to the same type of proceedings as the main action. If the simplified type of procedure would apply to the counterclaim only because of its amount in dispute, it nevertheless remains admissible and the ordinary procedure applies together with the main action (Art. 224 para. 1bis lit. a CPC).
123 Unlike, for example, the objective accumulation of actions under Art. 90 para. 1 lit. a CPC, Art. 224 CPC does not list the same subject-matter jurisdiction as a condition for the admissibility of the counterclaim. If the amount in dispute of the counterclaim exceeds the subject-matter jurisdiction of the main action court, the latter shall transfer the main action and the counterclaim to the court with the higher subject-matter jurisdiction (Art. 224 para. 2 CPC). It follows that the same subject-matter jurisdiction is not a prerequisite for the admissibility of a counterclaim if it is based solely on the value of the dispute. A counterclaim would therefore be admissible before the commercial court if it could not be qualified as a commercial dispute only because the amount in dispute was too low. This is not precluded by the simplified procedure pursuant to Art. 224 para. 1bis lit. a CPC.
124 The Federal Supreme Court then ruled that a counterclaim is admissible before the Commercial Court if it is directed against a party who is not registered in the Commercial Register and who exercises his right of choice pursuant to Art. 6 para. 3 CPC in the main action proceedings, as long as there is a connection between the main action and the counterclaim. What applies if the main action and the counterclaim are not related to each other has not yet been decided by the highest courts. However, the admissibility of such a counterclaim appears doubtful, especially since the main plaintiff exercises its right of choice under Art. 6 para. 3 CPC only with respect to a specific dispute and thus does not generally submit to the jurisdiction of the commercial court.
125 A counterclaim is likely to be inadmissible before the Commercial Court if it does not concern the business activities of at least one party.
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Postulat von Christoph Rudin vom 10.5.2007 mit dem Titel «SP: Gerichte beider Basel», Nr. 2007-114, abgelehnt durch den Beschluss des Landrats vom 18.10.2007, abrufbar unter: https://www.baselland.ch/politik-und-behorden/landrat-parlament/geschafte/geschaftsliste
Protokolle der Expertenkommission für die Vereinheitlichung des Zivilprozessrechts.
Protokolle der Kommissionen für Rechtsfragen des National- und Ständerats.
Protokoll der 17. Sitzung des Amtsjahrs 2015/2016 des Grossen Rats des Kantons Basel-Stadt vom 3.6.2015, S. 541 ff., Geschäftsnr. 14.0147 .