News Regarding the Jurisdiction of Commercial Courts
Legal Insight Series on the Revision of the CPC Entering into Force on 1 January 2025: Part 2

Introduction

On 1 January 2025, the revised Swiss Civil Procedure Code ("CPC") will come into effect, introducing significant changes. We will be analyzing these changes in a series of concise articles, aimed at offering a clear and current understanding of these changes.

The revision includes some changes to the provisions on the jurisdiction of commercial courts, affecting thus the existing commercial courts in the cantons of Zurich, Berne, St. Gallen and Aargau. Particularly noteworthy is the introduction of a legal basis for international commercial courts, with associated special rules on the language and cost of proceedings. Further amendments concern the newly introduced facultative conciliation proceedings and the definition of commercial disputes.

New Legal Basis for International Commercial Courts

Over the last few years, there has been a trend of countries setting up specialized international commercial state courts handling matters in English, among others in Paris, Amsterdam and Singapore. The Swiss legislator has now reacted to this development by providing a legal basis for cantons to establish dedicated courts for international commercial disputes. In such proceedings, special rules on language and costs will apply:

• Pursuant to Art. 129 para. 2 lit. b CPC, cantonal law may provide for English as the language of proceedings in international commercial disputes, if the parties so agree.
• Regarding the costs of the proceedings: Under the revised CPC, the plaintiff is generally required to advance only half of the expected court fees, whereas in international commercial disputes, the plaintiff will still be required to advance the entire amount of the expected fees (Art. 98 para. 2 lit. a CPC).

For these special provisions on language and costs to apply, the new Art. 6 para. 4 lit. c CPC sets out the following prerequisites:

• The dispute must concern the business activities of at least one party and have a value in dispute of at least CHF 100'000 (as compared to the ordinary threshold for commercial court jurisdiction of CHF 30'000).
• Additionally, the parties must agree on the jurisdiction of the commercial court. The parties' agreement may be explicit, such as in a forum selection clause, or implicit, such as by appearance (Einlassung / acceptation tacite).
• At least one party must have its domicile, habitual residence or registered office abroad at the time of the agreement on jurisdiction.

Accordingly, it will now be possible to submit disputes to the jurisdiction of a commercial court by way of a forum selection clause when one of the parties or even none of the parties are registered in the commercial register, provided the other requirements under this provision are met. Conceivable application cases include, inter alia, disputes arising out of a shareholders' agreement or of a share purchase agreement where one or more natural persons are involved as parties thereof.

The cantons of Zurich and Berne have already started to set up preliminary drafts and consultations on the establishment of international commercial courts within the scope of the new Art. 6 Abs. 4 lit. c CPC. The "Zurich International Commercial Court (ZICC)" (which will be organized as a section within the Zurich Commercial Court) is currently expected to start operations in 2026. In Geneva, preliminary discussions about possibly implementing an international commercial court are currently ongoing though it remains uncertain whether and when these changes will occur.

Conciliation Proceedings Possible Where the Commercial Courts Have Jurisdiction

Plaintiffs will now have the opportunity of first initiating facultative conciliation proceedings, even if the commercial court has jurisdiction (Art. 199 para. 3 CPC). Previously, disputes falling under the jurisdiction of commercial courts were not subject to conciliation proceedings in the sense of Art. 197 et seqq. CPC.

An application for conciliation interrupts the statute of limitation of a claim (Art. 135 para. 2 Swiss Code of Obligations). The newly introduced facultative application for conciliation is therefore an attractive means for plaintiffs to interrupt the statute of limitation, since such an application is considerably less expensive and less complex than a fully-fledged lawsuit before a commercial court. This is particularly important in cases where it is not possible to interrupt the statute of limitation by means of debt enforcement proceedings, such as when there is no venue for debt enforcement in Switzerland (because the debtor has their seat or domicile abroad) or where the claim is not for payment of a sum of money and therefore not subject to debt enforcement.

Changes to the Definition of Commercial Disputes

The definition of commercial disputes subject to jurisdiction of the commercial court (Art. 6 para. 2 CPC) has been amended and now explicitly excludes the following:

• Labor law disputes. This exclusion is merely a codification of the existing case law, which already held that labor disputes do not constitute commercial disputes.
• Tenancy law disputes. This represents a substantial change. Under the case law to date, tenancy disputes had been viewed as falling within the commercial court's jurisdiction, provided the other prerequisites were met. This will now no longer be the case, leaving tenancy dispute to be decided by the ordinary courts or specialized tenancy courts, depending on the canton.

Clarification on Admissibility of Counterclaims

Lastly, the revised CPC contains a new provision on counterclaims (Art 224 para. 1bis CPC). Particularly relevant for commercial court disputes is lit. b of this provision, which provides that a defendant may raise a negative declaratory action as a counterclaim if faced with a partial claim, even if the partial claim would be subject to the simplified procedure (and thus excluded from commercial court jurisdiction) due to its value in dispute being below CHF 30'000.

In practice, this means that a negative declaratory action by the defendant can be used under certain circumstances to establish jurisdiction of the commercial court against the will of the plaintiff. The new provision is in line with recent case law (cf. Federal Supreme Court, decision 143 III 506, consid. 4.4).