This blog series provides litigators and corporate counsel from other jurisdictions with a practical understanding of the mechanics, advantages, and limits of litigation before State Courts in Switzerland.
Partial and Final Decisions
Normally, a Court renders a final and binding decision by which it either decides not to consider the merits or takes a decision on the merits (art. 236(1) CPC).
The CPC does not expressly provide for partial decisions. However, they are generally accepted. A Court may render a partial decision by which it only decides some of the legal requests in cases where multiple claims are involved, some of which are ripe for decision while others need, for example, further taking of evidence.
For reasons of efficiency, Courts may make interim assessments about legal issues such as the jurisdiction of the Court or factual issues such as whether a party has suffered damage (art. 125 CPC). A Court may also issue an interim decision, if the contrary ruling of a higher Court would put an immediate end to the proceedings and, thereby, allow a substantial saving of time or costs, e.g., if the higher Court denies the jurisdiction of Swiss Courts. (art. 237(1) CPC).
Courts may also hold instruction hearings to freely discuss the matter in dispute with the parties, to complete the facts if needed, to attempt to reach an agreement between the parties and to prepare the main hearing (art. 226 CPC).
At any stage of the proceedings, a Court may order a suspension so that the parties can negotiate a settlement (art. 126 CPC). A Court under the CPC also has the right to proactively encourage the parties to reach a settlement (art. 124(3) CPC). Courts frequently make use of this power.
As a general rule, proceedings are governed by the requirement of rapid action, which obliges the Court to swiftly drive a case forward and decide it once it is ripe for decision. Accordingly, if the Court finds that a procedural requirement is not met and, thus, renders a decision where it does not consider the merits, such decision may be issued right after the filing of a claim.
No Motions to Dismiss
Motions to dismiss and summary judgments are not available under Swiss law.
A Court may render a default judgment if the Respondent fails to file his or her Statement of Response (and also does not do so by the end of the granted grace period) and the matter is ripe for decision (art. 223(2) CPC). Further, if a party fails to attend the main hearing, the Court considers the submissions made and may rely on the presentation of the party present and on the information on file to render a decision (art. 234(1) CPC). If both parties fail to attend the main hearing, the Court dismisses the proceedings as groundless (art. 234(2) CPC).
The defaulting party may apply for restoration of deadline, namely, a period of grace or another hearing. To obtain such restoration, the defaulting party must file his or her request within ten days, showing credibly that he or she was not responsible for the default (art. 148 (1)(2) CPC).