To Be Right and to Be Right: Principles of Civil Procedure

The plaintiff decides whether to sue or not. With his lawsuit, he determines the subject of the trial; he thus determines (1) what he (2) demands from whom (3) and for what reason.

The plaintiff asserts his claim (what) against the defendant (by whom) in the legal claims and the defendant also makes his claims (usually these are for dismissal of the action). In principle, the court is bound by these legal requests (exception: if the court has to decide certain questions of its own motion, e.g. in matters relating to children). The court may not award the plaintiff more than he demands in the legal claims and not less than the defendant acknowledges. This is part of the so-called disposition maxim.

As a rule, one party bears the burden of allegation and proof of the relevant facts (for what reason). In principle, the burden of allegation and proof lies with the person who derives rights from an allegation. This will regularly (but not always) be the plaintiff making a claim.

The allegations on the facts of the case must be presented in detail and comprehensively, i.e. so-called “substantiated”. Here, the plaintiff must be aware that he must explain the facts to the court and not to the opposing party. This also means that nothing can be assumed to be known and everything must be explained – even circumstances that are well known to the litigants. A successful statement of claim should enable the court to fully understand what happened without having to demand additional explanations. As a rule, the court is not obliged to do so (so-called “negotiation maxim”; Exception: if the court has to clarify the facts of the case ex officio, e.g. in matters relating to children). If the opposing party disputes these allegations, the party with the burden of proof must provide sufficient legal proof for its claims.

In contrast to the facts of the case, the parties do not have to explain the right to the court (“iura novit curia”): a legal document does not have to contain explanations of the legal situation. Nevertheless, precise knowledge of the law helps in structuring and constructing a legal document: only those who know the law can reliably assess which elements of the facts are really decisive and must be presented to the court and also proven. Under certain circumstances, one’s own legal explanations can also help to steer the court in the “right direction” in its legal assessment.

These principles explain a well-known legal “bon mot”: “To be right does not automatically mean to be right”. If a party fails to make the right requests or to assert, contest or prove a legally relevant fact in the proceedings in a timely and legally sufficient manner, this can lead to a loss of legal rights.

Different types of procedures

Swiss civil procedure law provides for different types of proceedings. As a rule, the conciliation procedure is mandatory and must be carried out (there are certain exceptions, e.g. in the case of debt collection or commercial disputes or matters to be dealt with in summary proceedings). The conciliation procedure takes place before a conciliation authority appointed by the cantons. The conciliation authority is not an actual court and has only very limited decision-making powers. The aim of this body is to reach an agreement between the parties.

After going through the conciliation procedure, the plaintiff receives the so-called permission to sue, which allows him to file his claim (usually within three months) with the competent court.

If the value of the dispute is more than CHF 30,000 or if no special type of procedure applies to the dispute, the proceedings will be conducted in accordance with the provisions on the ordinary procedure. From a formal point of view, this type of procedure is the most demanding. In this case, the statement of grounds and response must be made in writing. The second submission of the parties (reply and duplicate) may be made orally or in writing, at the discretion of the court. A main hearing including evidence proceedings in court is also prescribed. In addition, the court can always summon the parties to an instruction hearing in which settlement talks are held.

If the relevant legal requirements are met, the process will be conducted in a simplified procedure. In such a case, the requirements of the parties are lower than in ordinary proceedings. The simplified procedure is primarily (but not exclusively) intended for disputes in which the value of the dispute does not exceed CHF 30,000. In this case, it is possible for the plaintiff to file his claim without giving reasons. In this case, it is sufficient in a first step for the plaintiff to file a legal request, name the parties, indicate what is approximately involved and submit the available evidence. It should be noted, however, that even this does not release the above-mentioned obligations: If the facts of the case are not presented in detail in writing, this must be made up for orally at the hearing at the latest. In such a case, the proceedings may even be conducted entirely orally. Depending on the circumstances, however, the court may also conduct a simplified procedure purely in writing with two exchanges of letters. The court may also summon the parties to an instruction hearing under the simplified procedure.

The summary procedure is characterised by its speed and by the fact that, in principle, only documents are admissible as evidence. In this case, the court can dispense with a hearing and decide only on the basis of the file. The summary procedure is used in specific cases listed by law (e.g. court bans or precautionary measures).

If the defendant does not respond to the service of the claim within the time limit set for it, this can have serious legal consequences, regardless of the type of proceedings. In this case, the court hearing the action will assume, after the expiry of a grace period, that the defendant does not contest the facts presented by the plaintiff and thus essentially acknowledges them. If, in this situation, the dispute is ready for adjudication, the court will issue a judgment (so-called default judgment). Otherwise (e.g. if the facts of the case have obviously not yet been presented comprehensively enough by the plaintiff or if there are considerable doubts as to the correctness of an alleged fact), the court will summon the court to the main hearing.

Language of court and conduct of hearings

The procedure is conducted at cantonal level in the official language of the respective canton. On 1 January 2025, the revised Code of Civil Procedure will come into force and will make things easier. English is allowed as an additional language of proceedings in international commercial disputes, provided that all parties agree to it and the cantons provide for the possibility of international commercial courts.

Oral hearings are generally held on site at the court. Under the new law, the court will now also be able to conduct the hearing by video transmission, unless the law provides otherwise. This will require the consent of all persons involved in the procedure.

Costs in the process

Under applicable law, the court may require the plaintiff to pay an advance on the costs of the entire alleged legal costs. In current practice, this is almost always demanded by the courts, which means that the plaintiff has to pay a considerable amount of money in advance. According to the revised Code of Civil Procedure from 1 January 2025, advances will now in principle still amount to a maximum of half of the presumed total amount. This development is to be welcomed, as it lowers the hurdles for those affected to enforce their rights.

In addition to the advance payment of court costs, it may also be necessary for the plaintiff to provide security for the party compensation of the opposing party in the event of defeat before the court considers the claim. In the course of the trial, advances on costs for the taking of evidence (e.g. expert opinions) must then be made in some cases.

Our team of experienced litigators and litigation specialists will be happy to represent your rights and interests out of court as well as before state courts and arbitration tribunals.