Legal News December 2010
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Dear clients and business friends
On 1 January 2011, a number of new laws will come into force which will change the Swiss legal landscape significantly.
The Swiss Code of Civil Procedure (CCP) and the Swiss Code of Criminal Procedure (CCrP) will replace the 26 cantonal codes
of civil and criminal procedure hitherto in force. This will usher in uniform, nationwide applicable rules for civil and criminal
trials for the first time in Switzerland's history. This is the most significant legal reform that Switzerland has ever seen
in this area of the law. As has been the case up to now, the organization of the courts remains a matter for the cantons, but
will have to undergo some adjustments in order to comply with the requirements set out in the new Swiss procedural codes. In
addition to this, the Act on Organization of Penal Authorities (AOPA) as well as the revised Lugano Convention (LugC) shall come
into force at the same time. The entry into force of the CCP and the LugC shall also have an impact on the Federal Private International
Law Act (PILA) and in particular on writs of attachment under the Federal Debt Enforcement and Bankruptcy Act (DEBA).
The present edition of Legal News provides an overview of the most important changes.
Daniel Bachmann,
Attorney-at-law, Partner, Legal Services
daniel.bachmann@ch.ey.com
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Fundamental Renewal of Procedural Laws
per 1 January 2011
Print version (PDF 237 kB)
1. The Swiss Code of Civil Procedure (CCP)
Until now, Switzerland has been the sole remaining country in Europe without a unified, national set of rules governing civil procedure.
This will change dramatically with the entry into force of the CCP on 1 January 2011. The 26 cantonal codes of civil procedure and
the Federal Act on Jurisdiction in Civil Matters (CJA) are to be replaced by the CCP. The introduction of uniform rules will lead to increased
legal certainty since it will do away with the legal fragmentation that has prevailed in this area up to now.
The 408 articles which make up the CCP are based on the established traditions of cantonal procedural law - albeit without taking a given
cantonal code as a template - and combine to achieve a practice-orientated, efficient and modern set of procedural rules. It is thus to be
hoped that on the one hand, those seeking justice can obtain rapid and effective protection, while on the other hand the CCP shall provide a
useful instrument for courts and attorneys, given that it will no longer be necessary to be proficient in every individual set of procedural
rules and their interpretation.
The different types of procedure which exist have been determined on the basis of the parties and the nature of their dispute,
whereby alternative dispute resolution (conciliation proceedings, mediation) have been accorded a prominent position under the new law.
Ordinary proceedings (Art. 219 ss. CCP) are for pecuniary claims of a high value. These proceedings represent those of the classical
civil trial.
Simplified proceedings (Art. 243 ss. CCP) are for disputes where the amount in contention does not exceed CHF 30,000.- as well
as for disputes in the area of what is referred to as "social private law" (e.g. disputes involving lease agreements, employment contracts,
consumer protection etc.). These proceedings are characterized by increased inquisitorial powers on the part of the judge, lighter formal
requirements, and oral submissions.
Summary proceedings (Art. 248 ss. CCP) apply where the plaintiff is hoping to obtain a decision quickly (e.g. right of reply,
preventive measures etc.).
In addition, the CCP sets out special rules in the area of matrimonial and family law (Art. 271 ss. CCP).
The introduction of the CCP on 1 January 2011 does not mean that all proceedings will suddenly be adjudicated under new law. Any proceedings
still pending on 1 January 2011 shall be completed under the applicable cantonal procedural laws before the competent authorities. Should, however,
appeals proceedings subsequently be launched before a higher cantonal instance, then it is the provisions of the new CCP which shall
apply.
2. The Swiss Code of Criminal Procedure (CCrP)
The CCrP replaces the 26 cantonal codes of criminal procedure as well as the Federal Act on Criminal Procedure. This results in criminal
acts in Switzerland not only being subject to uniform substantive rules under the Swiss Crimes Act, but also being prosecuted and judged
under the same procedural rules. As is the case with the CCP, the elimination of legal fragmentation in criminal proceedings serves the
greater good of increased equality before the law and greater legal certainty.
3. Act on Organization of Penal Authorities (AOPA)
The AOPA implements the requirements set out in the CCrP. It abolishes the Federal Office of Investigative Judges, who's human and financial
resources are henceforth transferred to the Federal Prosecutors Office. At the same time, the AOPA governs oversight of the Public Prosecutors
Office. Such oversight shall, in future, be exercised by a commission, specially appointed by Parliament.
4. The Lugano Convention (LugC)
The LugC on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which entered into force for Switzerland in 1992,
governs the international jurisdiction of courts in the signatory States. In addition, it guaranties that judgments handed down in one signatory
State can be recognized and enforced in the other European signatory States. The revised LugC provides an efficient procedure for the
mutual recognition and enforcement of judgments and contains new provisions which take into account developments in the area of electronic
commerce. The most important new change in practical terms is an expansion in the territorial scope of application of the LugC to
include the new EU Member States.
This results in a considerable improvement to legal certainty, which should in particular benefit commerce, but also consumers and those entitled to
financial support payments.
5. The Debt Enforcement and Bankruptcy Act (DEBA)
Both the CCP and the LugC have important ramifications for the DEBA. In addition to the amendments contained in Art. 81 DEBA, pursuant to which
a separate decision on the admission of foreign enforcement claims in order to enforce them domestically (exequatur) may have substantive legal
force, the changes particularly concern writs of attachment (Art. 271 ss. DEBA).
A writ of attachment is now the solely admissible protective measure pursuant to Art. 47 (2) LUgC for pecuniary claims; provisional
liens or the establishment of asset inventories are no longer allowed. Other important amendments are the following:
- Every definitive executory title authorizes its holder to a writ of attachment (Art. 271 [1] [6] DEBA);
- The court examining a petition for a writ of attachment can subject assets throughout the entire territory of Switzerland to said writ
(Art. 271 [1] DEBA);
- The creditor has a choice when deciding which court to seek a writ of attachment before, namely at the place of debt enforcement proceedings
or at the place where the assets in question are located (Art. 272 [1] DEBA);
- Any decision on opposition to the issuing of a writ of attachment can now only be contested pursuant to an appeal within the meaning of the
CCP (Art. 278 [3] DEBA in connection with Art. 319 ss. CCP);
- A special appeals procedure has been established for challenges to a declaration of enforceability and a writ of attachment for foreign
decisions pursuant to LugC (Art. 327a CCP);
- The declaration of enforceability and the writ of attachment for foreign decisions can be granted by the same court (Art. 271 [3] DEBA).
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Note: The Legal News provides an overview of new legal developments. The content does not represent any legal advice.
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