Swiss Code of Civil Procedure
The Swiss Code of Civil Procedure takes effect on January 1, 2011. Under the new rules, a conciliation or mediation process must now be conducted before a civil action for debt collection can be filed. Here is an overview of these procedures. By Michael Krampf, lic. iur., attorney-at-law, who works as a legal counsel and editor at the Beobachter Counseling Center.
The new Code of Civil Procedure replaces the 26 cantonal procedural laws. An estimated 10,000 cantonal legal provisions will be repealed. From now on, litigation will follow the same model throughout Switzerland. Before a lawsuit can be filed with the court, a mediation procedure must first be conducted in cases involving financial disputes. The principle of «mediation first, then litigation» applies. The mediation process may be waived only if the amount in dispute is at least 100,000 Swiss francs and both parties agree to do so.
The proceedings begin with a request for conciliation, which is submitted in writing, orally, or electronically to the competent conciliation board. An oral hearing then takes place. The goal of the conciliation hearing is for the parties to reach an agreement. If they do not, the conciliator grants leave to file a lawsuit. With this authorization, the plaintiff may file the lawsuit with the court within three months. If the plaintiff fails to meet this deadline, they must file a new request for conciliation.
A proposed ruling and a decision are possible
The conciliation authority does more than just mediate. The new rules of procedure provide for two additional options. First, the conciliator may propose a ruling if the amount in dispute does not exceed 5,000 francs. This proposal then has the force of a judgment if the parties do not reject it within 20 days. Second, the conciliator may issue a judgment if the plaintiff requests it and the amount in dispute does not exceed 2,000 francs.
The proposed ruling and the option to issue a decision are discretionary provisions. It is therefore up to the conciliation authority to decide whether to issue a proposed ruling or a final ruling. Both involve a considerable amount of additional work. For this reason, there is concern that many conciliators—especially when their workload is heavy and they are also legal laypeople—will opt for the easier path and issue a certificate of authorization to sue.
Mediation as an Alternative
In addition to the conciliation procedure, mediation is another option. This is possible if both parties agree to it. The request for mediation should be filed with the conciliation authority so that any ongoing statutes of limitations are tolled. The parties then select a mediator. If mediation is successful, the parties reach an agreement, which they have approved by the conciliation authority. This agreement then has the same legal effect as a judgment. If mediation fails, the conciliation authority issues a certificate of authorization to sue. This allows the plaintiff to subsequently file a lawsuit in court.
Book tip
Book set OR and ZGB for everyday use
Annotated Case Studies from the *Beobachter* Consulting Practice
The book set «OR and ZGB for Everyday Life» contains the complete statutory provisions and all important court rulings. These “Beobachter” editions of the Swiss Code of Obligations and the Swiss Civil Code are the only ones in Switzerland to explain every section in everyday language. This makes the legal texts easy to understand even for non-lawyers.
Updated, Annotated 2010 Edition
Beobachter-Buchverlag,
ISBN 978-3-85569-431-0
2 volumes, as a set, Fr. 99.-
Do you need legal advice?
The Beobachter Consulting Center offers you and your employees expert telephone consulting on legal issues concerning your company 6 months for only Fr. 99. Order the consulting package for SMEs at
Observer.ch/kmu/ or 0800 83 0800.
The proceedings begin with a request for conciliation, which is submitted in writing, orally, or electronically to the competent conciliation board. An oral hearing then takes place. The goal of the conciliation hearing is for the parties to reach an agreement. If they do not, the conciliator grants leave to file a lawsuit. With this authorization, the plaintiff may file the lawsuit with the court within three months. If the plaintiff fails to meet this deadline, they must file a new request for conciliation.
A proposed ruling and a decision are possible
The conciliation authority does more than just mediate. The new rules of procedure provide for two additional options. First, the conciliator may propose a ruling if the amount in dispute does not exceed 5,000 francs. This proposal then has the force of a judgment if the parties do not reject it within 20 days. Second, the conciliator may issue a judgment if the plaintiff requests it and the amount in dispute does not exceed 2,000 francs.
The proposed ruling and the option to issue a decision are discretionary provisions. It is therefore up to the conciliation authority to decide whether to issue a proposed ruling or a final ruling. Both involve a considerable amount of additional work. For this reason, there is concern that many conciliators—especially when their workload is heavy and they are also legal laypeople—will opt for the easier path and issue a certificate of authorization to sue.
Mediation as an Alternative
In addition to the conciliation procedure, mediation is another option. This is possible if both parties agree to it. The request for mediation should be filed with the conciliation authority so that any ongoing statutes of limitations are tolled. The parties then select a mediator. If mediation is successful, the parties reach an agreement, which they have approved by the conciliation authority. This agreement then has the same legal effect as a judgment. If mediation fails, the conciliation authority issues a certificate of authorization to sue. This allows the plaintiff to subsequently file a lawsuit in court.
Book tip
Book set OR and ZGB for everyday use
Annotated Case Studies from the *Beobachter* Consulting Practice
The book set «OR and ZGB for Everyday Life» contains the complete statutory provisions and all important court rulings. These “Beobachter” editions of the Swiss Code of Obligations and the Swiss Civil Code are the only ones in Switzerland to explain every section in everyday language. This makes the legal texts easy to understand even for non-lawyers.
Updated, Annotated 2010 Edition
Beobachter-Buchverlag,
ISBN 978-3-85569-431-0
2 volumes, as a set, Fr. 99.-
Do you need legal advice?
The Beobachter Consulting Center offers you and your employees expert telephone consulting on legal issues concerning your company 6 months for only Fr. 99. Order the consulting package for SMEs at
Observer.ch/kmu/ or 0800 83 0800.
