Changes in Process Management
Legal insight series on the revision of the CPC entering into force on 1 january 2025: Part 3

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

This edition highlights significant new procedural options under the revised CPC in the areas of coordination of proceedings and procedural defenses, interim measures and appeals, and it describes how parties may use them to manage their processes going forward.

Coordination of proceedings and procedural defenses

Under the current law, plaintiffs can combine several claims against the same party in one action if they fall within the material jurisdic-tion of the same court and are subject to the same type of procedure. The revised CPC will expand this by allowing parties to submit mul-tiple claims in the same proceedings, even if these claims individually fall under different material jurisdictions or types of proceedings, based on their respective amounts in dispute. If different types of proceedings apply to the individual claims, they will be consolidated and assessed together in ordinary proceedings (Article 90 para. 2 CPC).

Additionally, parties will be allowed to file counterclaims in ordinary proceedings, regardless of the type of proceeding that would typically govern such a counterclaim. This includes counterclaims that would normally be handled in a simplified procedure based on the amount in dispute, as well as negative declaratory actions in response to a partial action (Article 224 para. 1bis CPC). For further details, see our Legal Insight regarding the jurisdiction of the commercial courts under the revised CPC, accessible under this link.

These changes, which codify the current case law of the Federal Supreme Court, enhance clarity in the coordination of proceedings and strengthen access to counterclaims and negative declaratory actions as procedural defenses.

Availability of interim measures

The revised CPC enhances legal certainty regarding interim measures, particularly in cross-border contexts. It explicitly states that higher cantonal courts, if they have jurisdiction, may order provisional or protective measures also before the commencement of legal proceed-ings (Article 8 para. 2 CPC).

This may become increasingly relevant in international commerce, as parties can agree on the jurisdiction of a higher cantonal court in Switzerland as the sole cantonal court of first instance for financial disputes valued at a minimum of CHF 100,000. With Switzerland's implementation of the Hague Convention on Choice of Court Agreements effective 1 January 2025, these higher cantonal courts will no longer be permitted to decline their jurisdiction, even if all parties are domiciled abroad and foreign law applies to the dispute (deletion of Article 5 para. 3 of the Private International Law Act).

Efficiency in appeal proceedings

The revised CPC promotes court decisions without a written reasoning. While first-instance courts already had the ability to issue decisions without a written reasoning under the current law, the revised CPC now stipulates that they will generally do so in the future (Article 239 para. 1 CPC). The new rule also applies to appellate courts (Article 318 para. 2 and Article 327 para. 5 CPC). If a party does not request a written reasoning within 10 days, the party is deemed to have waived its right to challenge the decision (Article 239 para. 2 CPC). It re-mains to be seen how the new law will be applied in practice, in particular by the appellate courts.

According to Article 112 para. 2 of the revised Federal Supreme Court Act (FSCA), for unreasoned decisions subject to appeal to the Feder-al Supreme Court, the Parties may request a written reasoning within 30 days, and the decision will only become enforceable after this period or once the written reasoning has been provided. While Article 239 para. 3 CPC contains a reservation in favor of the FSCA, the role of this reservation is debated under the new law. Accordingly, the relationship between Article 239 para. 2 CPC and Article 112 para. 2 FSCA will need to be clarified in practice. For the time being, it appears prudent to assume a 10-day deadline also for decisions that are subject to appeal to the Federal Supreme Court.

The revised CPC also clarifies the enforceability of appeal decisions. Decisions without written reasoning are enforceable if they are legally binding and the court has not suspended their enforcement, or if they are not yet legally binding but their early enforcement has been authorized (Article 336 para. 3 CPC). If the affected party faces a disadvantage that cannot be easily remedied, appellate courts may, upon request and even before an appeal has been filed, order the early enforcement of the judgment or postpone the enforceability, depending on the specific situation. This order lapses automatically if no written reasoning for the judgment is requested or the time limit for an appeal expires unused (Article 315 paras. 4 and 5 and Article 325 para. 2 CPC).

As a result of the above, the parties to a Swiss dispute will benefit from certain efficiency gains in the management of litigation proceed-ings. However, they may also need to account for a potentially greater dynamic in decisions and appeals and act quickly to safeguard their rights.

While individual questions remain unanswered in detail, the changes in the management of civil litigation in Switzerland resulting from the revised CPC overall provide legal certainty and new procedural options, which are particularly relevant for international economic actors involved in or considering commercial litigation in Switzerland.