¹ Cantonal law governs the material jurisdiction and functional jurisdiction of the courts, unless the law provides otherwise.

² If the material jurisdiction depends on the value in dispute, such value is calculated according to this Code.

¹ The cantonal law designates the court that has jurisdiction as sole cantonal instance for:

a.

disputes in connection with intellectual property rights, including disputes concerning the nullity, ownership, licensing, transfer and violation of such rights;

b.

cartel law disputes;

c.

disputes on the use of a business name;

d.

disputes under the Unfair Competition Act of 19 December 1986⁴ if the amount in dispute exceeds 30,000 francs or if the Confederation exercises its right to file an action;

e.

disputes under the Nuclear Energy Public Liability Act of 18 March 1983⁵;

f.

claims against the Confederation;

g.

the designation of a special comptroller by virtue of Article 697b of the Code of Obligations (CO)⁶;

h.⁷

disputes under the Collective Investment Schemes Act of 23 June 2006⁸, the Financial Market Infrastructure Act of 19 June 2015⁹ and the Financial Institutions Act of 15 June 2018¹⁰;

i.¹¹

disputes under the Coat of Arms Protection Act of 21 June 2013¹², the Federal Act of 25 March 1954¹³ on the Protection of the Emblem and Name of the Red Cross and the Federal Act of 15 December 1961¹⁴ on the Protection of the Names and Emblems of the United Nations Organization and other Intergovernmental Organisations.

² This court is also competent to order interim measures before an action is pending.

¹ The cantons may designate a special court that has jurisdiction as sole cantonal instance for commercial disputes (Commercial Court).

² A dispute is considered commercial, if:

a.

it concerns the commercial activity of at least one party;

b.

the decision is subject to an objection in civil matters to the Federal Supreme Court; and

c.

the parties are registered in the Swiss Commercial Registry or in an equivalent foreign registry.

³ If only the defendant is registered in the Swiss Commercial Register or in an equivalent foreign register, but all the other conditions are met, the plaintiff may choose between the Commercial Court and the ordinary court.

⁴ The cantons may also assign to the Commercial Court:

a.

the disputes mentioned in Article 5 paragraph 1;

b.

the disputes relating to the law of commercial companies and cooperatives.

⁵ The Commercial Court is also competent to order interim measures before an action is pending.

The cantons may designate a court that has jurisdiction as sole cantonal instance for disputes relating to insurance supplementary to social health insurance under the Federal Act of 18 March 1994¹⁵ on Health Insurance.

¹ If in a financial dispute the value in dispute is at least CHF 100,000, the plaintiff may, with the consent of the defendant, file its action directly before the higher court.

² This court decides as the sole cantonal instance.

¹ Judges and judicial officers shall recuse themselves if:

a.

they have a personal interest in the case;

b.

they have acted in the same case in another capacity, in particular as member of an authority, legal agent, expert witness, witness or mediator;

c.

they are or were married to, or live or lived in a registered partnership or co-habit with a party or his or her representative or a person who has acted in the same case as a member of the lower court;

d.

they are related to a party by birth or marriage in direct line or in collateral line up to the third degree;

e.

they are related by birth or marriage in direct line or in collateral line up to the second degree to the representative of a party or a person who has acted in the same case as a member of the lower court;

f.

they may not be impartial for other reasons, notably due to friendship or enmity with a party or his or her representative.

² Involvement in the following, in particular, is in itself no reason for recusal:

a.

the decision on legal aid;

b.

the conciliation proceedings;

c.

the setting aside of an objection under Articles 80 to 84 DEBA²⁷;

d.

the ordering of interim measures;

e.

proceedings for protection of the marital union.

The judge or judicial officer concerned shall make a timely disclosure of any possible reason for recusal and shall recuse him- or herself voluntarily if he or she considers that such reason exists.

¹ A party that wishes to challenge a judge or judicial officer must file the corresponding application as soon as it has become aware of the reason for recusal. It must show credibly the facts that justify the challenge.

² The judge or judicial officer concerned shall respond to the application.

¹ If the reason given for recusal is disputed, the court shall decide.

² The decision may be challenged by objection.

¹ Procedural acts in which a person obliged to recuse him- or herself has participated must be annulled and repeated if a party so requests within 10 days of becoming aware of the reason for recusal.

² If the taking of evidence cannot be repeated, the relevant evidence may be taken into consideration by the deciding court.

³ If a reason for recusal is detected only after the close of the proceedings, the provisions on review apply.

All those who participate in proceedings must act in good faith.

¹ The parties have the right to be heard.

² They have in particular the right to consult the case files and to obtain copies thereof provided this does not conflict with overriding public or private interests.

¹ Hearings and any oral passing of judgment shall be conducted in public. The decisions are made accessible to the public.

² Cantonal law determines whether the deliberations are public.

³ Proceedings may be held completely or partially in camera when required by public interest or by the legitimate interests of a person involved.

⁴ Family law proceedings are not conducted in public.

¹ The parties must present the court with the facts in support of their case and submit the related evidence.

² Statutory provisions relating to the ex-officio establishment of facts and taking of evidence are reserved.

If a party's submissions are unclear, contradictory, ambiguous or manifestly incomplete, and the court shall give the party the opportunity to clarify or complete the submission by asking appropriate questions.

The court applies the law ex-officio.

¹ The court may not award a party anything more than or different from what the party has requested, nor less than what the opposing party has acknowledged.

² The statutory provisions under which the court is not bound by the parties' requests are reserved.

¹ The court shall consider an action or application provided the procedural requirements are satisfied.

² Procedural requirements are in particular the following:

a.

the plaintiff or applicant has a legitimate interest;

b.

the court has subject matter and territorial jurisdiction;

c.

the parties have the capacity to be a party and the capacity to take legal action;

d.

the case is not the subject of pending proceedings elsewhere;

e.

the case is not already the subject of a legally-binding decision;

f.

the advance and security for costs have been paid.

The court shall examine ex-officio whether the procedural requirements are satisfied.

If the parties have concluded an arbitration agreement relating to an arbitrable dispute, the seised court shall declines jurisdiction unless:

a.

the defendant has made an appearance without reservation;

b.

the court holds that the arbitration agreement is manifestly invalid or unenforceable; or

c.

the arbitral tribunal cannot be constituted for reasons that are manifestly attributable to the defendant in the arbitration proceedings.

The capacity to be a party is subject to legal capacity or the qualification as a party by virtue of federal law.

¹ Any person who has the capacity to act has the capacity to take legal action.

² A person without capacity to act may act through his legal representative.

³ Provided a person without the capacity to act has the capacity to consent, he or she may:

a.

independently exercise those rights conferred by virtue of his or her personality;

b.

temporarily take the acts necessary in cases of imminent danger.

¹ Any person who has capacity to take legal action may choose to be represented in proceedings.

² The following persons are allowed to act as professional representatives:

a.

in all proceedings: lawyers admitted to represent parties before Swiss courts under the Lawyers Act of 23 June 2000²⁹;

b.

before the conciliation authorities, in financial disputes under the simplified procedure and in cases under the summary procedure: licensed administrators and legal agents if provided for by cantonal law;

c.

in cases under the summary procedure in accordance with Article 251 of this Code: professional representatives under Article 27 DEBA³⁰;

d.

before the special courts for tenancy matters and for employment matters: professionally qualified representatives if provided for by cantonal law.

³ The representative must prove his or her authority by power of attorney.

⁴ The court may order the personal appearance of a represented party.

¹ If a party is manifestly unable to appear, the court may invite that party to appoint a representative. If the party does not comply within the set deadline, a representative shall be appointed by the court.

² The court shall notify the Adult and Child Protection Authority if protective measures are deemed necessary.³¹

¹ If two or more persons are in a legal relationship that calls for one single decision with effect for all of them, they must jointly appear as plaintiffs or be sued as joint defendants.

² Procedural measures duly taken by one of the joint parties are likewise effective for the others, with the exception of challenging a decision.

¹ Two or more persons whose rights and duties result from similar circumstances or legal grounds may jointly appear as plaintiffs or be sued as joint defendants.

² Voluntary joinder is excluded if the individual cases are subject to different types of procedure.

³ Each of the joint parties may proceed independently from the others.

The joint parties may appoint a joint representative, failing which service is made to each party individually.

¹ If the object in dispute is alienated in the course of the proceedings, the acquirer may take up the proceedings in place of the alienating party.

² The substitute party is liable for the entire costs of the proceedings. The retiring party is jointly and severally liable for the costs incurred until the substitution.

³ In justified cases, the substituting party must, if so requested by the opposing party, provide security to guarantee the enforcement of the decision.

⁴ In the absence of alienation of the object in dispute, the substitution of a party is permitted only with the consent of the opposing party; special legal provisions on the legal succession are reserved.

¹ The procedural costs include:

a.

the court costs;

b.

the party costs.

² The court costs include:

a.

the fee for the conciliation proceedings;

b.

the fee for the decision (judgment fee);

c.

the costs of taking evidence;

d.

the costs of translation;

e.

the costs of representation for a child (Art. 299 and 300).

³ The party costs include:

a.

the reimbursement of necessary outlays;

b.

the costs for professional representation;

c.

in justified cases: reasonable compensation for personal efforts if a party is not professionally represented.

The cantons set the tariffs for the procedural costs.

The court shall advise a party without legal representation on the costs to be expected and on legal aid.

The court may demand that the plaintiff make an advance payment up to the amount of the expected court costs.

¹ At the request of the defendant, the plaintiff must provide security for party costs:

a.

if he or she has no residence or registered office in Switzerland;

b.

if he or she appears to be insolvent, notably if he or she has been declared bankrupt or is involved in ongoing composition proceedings or if certificates of unpaid debts have been issued;

c.

if he or she owes costs from prior proceedings; or

d.

if for other reasons there seems to be a considerable risk that the compensation will not be paid.

² In the case of mandatory joinder, security must be provided only if each party fulfils one of the above mentioned conditions.

³ No security need be provided:

a.

in simplified proceedings, with the exception of financial disputes under Article 243 paragraph 1;

b.

in divorce proceedings;

c.

in summary proceedings, with the exception of the proceedings in clear cases (Art. 257).

¹ Security may be provided in cash or in the form of a guarantee from a bank with a branch in Switzerland or from an insurance company authorised to operate in Switzerland.

² The court may subsequently order the increase, reduction or return of the security.

¹ The court sets a deadline for the provision of the advance and the security.

² It may order interim measures before the security is provided.

³ If the advance or security is not provided even within a period of grace, the action or application shall be declared inadmissible.

¹ Each party shall advance the costs for taking the evidence that he or she requires.

² If the parties offer the same evidence, each party shall advance half of the costs.

³ If one party fails to pay an advance, the other party may do so, failing which the evidence shall not be taken. Matters in which the court must establish the facts ex officio are reserved.

Decisions relating to advances of costs and security may be challenged by way of objection.

¹ As a general rule, the court decides on the procedural costs in the final decision.

² Where an interim decision is made (Art. 237), the procedural costs incurred up to that point may be allocated.

³ The decision on the procedural costs for interim measures may be deferred until the final decision on the merits.

⁴ If a case is referred back to a lower court, the higher court may leave it to the lower court to allocate the costs of the appellate proceedings.

¹ The court costs are determined and allocated ex officio.

² The court awards party costs according to the tariffs (Art. 96). The parties may submit a statement of costs.

¹ The costs are charged to the unsuccessful party. If an action is not admitted by the court or if it is withdrawn, the plaintiff is deemed to be the unsuccessful party; in case of acceptance of the claim it is the defendant.

² If no party entirely is successful, the costs are allocated in accordance with the outcome of the case.

³ If three or more persons are participating in the proceedings as principal parties or accessory parties, the court shall determine each party's share of the costs. It may hold the parties jointly and severally liable.

¹ The court may diverge from the general principles of allocation and allocate the costs at its own discretion:

a.

if an action has been upheld in principle but not the full amount claimed, and if the amount of the award was determined at the court's discretion or if the claim was difficult to quantify;

b.

if a party was caused to litigate in good faith;

c.

in family law proceedings;

d.

in proceedings relating to a registered partnership;

e.

if the proceedings are dismissed as groundless and the law does not provide otherwise;

f.

if there are other extraordinary circumstances that would result in an allocation according to the outcome of the case being inequitable.

[tab]

^1bis In the event of the dismissal of actions under company law for performance to the company, the court may at its discretion apportion the procedural costs between the company and the plaintiff.³²

² Court costs that are not attributable to any party or third party may be charged to the canton if equitable.

Unnecessary costs are charged to the party that caused them.

¹ If a case is settled in court, the costs are charged to the parties according to the terms of the settlement.

² The costs are allocated according to Articles 106-108:

a

if the settlement does not provide for the allocation of costs; or

b.

if, in terms of the settlement, the costs are charged solely to a party that has been granted legal aid.

The decision on costs may be separately challenged by way of objection only.

¹ The court costs are set off against the advances paid by the parties. The balance is collected from the person liable to pay.

² The party liable to pay shall reimburse the other party his or her advances and shall pay the other party the party costs awarded.

³ The provisions on legal aid are reserved.

¹ The court may defer or, in the event of permanent lack of means, waive the court costs.

² The debt prescribes ten years after the close of proceedings.

³ The default interest is 5 percent.

¹ No party costs are awarded in conciliation proceedings. Payment by the canton of legal agents under the legal aid system is reserved.

² No court costs are charged in disputes:

a.

relating to the Gender Equality Act of 24 March 1995³³;

b.

relating to the Disability Discrimination Act of 13 December 2002³⁴;

c.

relating to the rental and lease of residential and business property or the lease of agricultural property;

d.

relating to an employment contract or the Recruitment Act of 6 October 1989³⁵ up to an amount in dispute of 30,000 francs;

e.

relating to the Participation Act of 17 December 1993³⁶;

f.

relating to insurance supplementary to the social health insurance under the Federal Act of 18 March 1994³⁷ on Health Insurance.

In litigation proceedings, no court costs are charged in disputes:

a.

relating to the Gender Equality Act of 24 March 1995³⁸;

b.

relating to the Disability Discrimination Act of 13 December 2002³⁹;

c.

relating to an employment contract or the Recruitment Act of 6 October 1989⁴⁰ up to an amount in dispute of 30,000 francs;

d.

relating to the Participation Act of 17 December 1993⁴¹;

e.

relating to insurance supplementary to the social health insurance under the Federal Act of 18 March 1994⁴² on Health Insurance;

f.⁴³

because of violence, threats or harassment under Article 28b SCC⁴⁴ or relating to electronic surveillance under Article 28c SCC.

¹ Court costs may also be charged in cost-free proceedings to a party who proceeds in a vexatious manner or in bad faith.

² In the case of litigation relating to Article 114 letter f, court costs may also be charged to the unsuccessful party if a prohibition pursuant to Article 28b SCC⁴⁵ or electronic surveillance pursuant to Article 28c SCC is ordered against them.⁴⁶

¹ The cantons may provide for further exemptions from procedural costs.

² Exemptions from costs that the canton provides for itself, its communes or other corporations under public cantonal law also apply to the Confederation.

A person is entitled to legal aid if:

a.

he or she does not have sufficient financial resources; and

b.

his or her case does not seem devoid of any chances of success.

¹ Legal aid comprises:

a.

an exemption from the obligation to pay advances and provide security;

b.

an exemption from court costs;

c.

the appointment by the court of a legal agent under the legal aid system if this is necessary to protect the rights of the party concerned, and in particular if the opposing party is represented by a legal agent; the legal agent under the legal aid system may be appointed prior to the court hearing in order to prepare the proceedings.

² Legal aid may be granted for all or part of the case.

³ The grant of legal aid does not relieve the party concerned from paying party costs to the opposing party.

¹ The application for legal aid may be made before or after an action becomes pending.

² The applicant must disclose his or her financial circumstances including income and assets and state his or her position on the merits of the case and the evidence he or she intends to produce. He or she may name a preferred legal agent in the application.

³ The court shall decide on the application in summary proceedings. The opposing party may be heard, and must be heard if legal aid is to cover security for party costs.

⁴ In exceptional circumstances, legal aid may be granted with retrospective effect.

⁵ A new application for legal aid must be made in appellate proceedings.

⁶ No court costs are charged for proceedings relating to the granting of legal aid, except in cases of bad faith or vexatious conduct.

The court shall revoke legal aid if the conditions are no longer fulfilled or if it comes to light that they never were fulfilled.

The decision by which legal aid is refused or revoked in full or in part may be challenged by way of objection.

¹ If a party with legal aid is unsuccessful, the costs shall be settled as follows:

a.

the legal agent under the legal aid system shall be adequately remunerated by the canton;

b.

the court costs shall be charged to the canton;

c.

the opposing party shall have its advances refunded;

d.

the party with legal aid must pay party costs to the opposing party.

² If the party with legal aid is successful, the legal agent under the legal aid system shall be adequately remunerated by the canton where compensation from the opposing party is irrecoverable or likely to be irrecoverable. By paying the remuneration, the canton becomes entitled to enforce the claim for costs.

¹ A party must reimburse the legal aid received as soon as he or she is in a position to do so.

² The canton's claim prescribes 10 years after the close of proceedings.

¹ The court is the director of proceedings. It issues the required procedural rulings to enable the proceedings to be prepared and conducted efficiently.

² The role of director of proceedings may be delegated to one of the members of the court.

³ The court may at any time attempt to achieve an agreement between the parties.

In order to simplify the proceedings, the court may, in particular:

a.

limit the proceedings to individual issues or prayers for relief;

b.

order the separation of jointly filed actions;

c.

order the joinder of separately filed actions;

d.

separate the counterclaim from the main proceedings.

¹ The court may suspend proceedings if appropriate. The proceedings may be suspended in particular if the decision depends on the outcome of other proceedings.

² Suspension may be challenged by way of objection.

¹ If factually connected cases are pending before different courts, the subsequently seised court may transfer the case to the court seised first if that court agrees to take over.

² The transfer may be challenged by way of objection.

¹ Any person who violates decency in court or disrupts the course of the proceedings shall be liable to a reprimand or a disciplinary fine not exceeding 1,000 francs. In addition, the court may exclude the person concerned from the hearing.

² The court may request the assistance of the police to enforce its orders.

³ In the event of bad faith or vexatious conduct, the parties and their representatives shall be liable to a disciplinary fine not exceeding 2,000 francs, and in the event of a repetition not exceeding 5,000 francs.

⁴ The disciplinary fine may be challenged by way of objection.

¹ Evidence is required to prove facts that are legally relevant and disputed.

² Evidence may also be required to prove common practice, local usages and, in financial disputes, foreign law.

Evidence is not required in support of publicly known facts, facts known to the court and commonly accepted rules of experience.

¹ Each party is entitled to have the court accept the evidence that he or she offers in the required form and time.

² Illegally obtained evidence shall be considered only if there is an overriding interest in finding the truth.

¹ The court takes evidence ex officio whenever it must ascertain the facts ex officio.

² It may take evidence ex officio if serious doubts exist as to the truth of an undisputed fact.

Before evidence is taken, the court issues the necessary rulings. They indicate, in particular, the admissible evidence and, for each fact, which party has the burden of proof or counter-proof. Rulings on evidence may be changed or amended any time.

¹ The taking of evidence may be delegated to one or more members of the court.

² A party may, for good cause, request that the evidence be taken by the court that decides the case.

³ The parties have the right to participate in the taking of evidence.

The court shall take appropriate measures to ensure that taking evidence does not infringe the legitimate interests of any parties or third party, such as business secrets.

The court forms its opinion based on its free assessment of the evidence taken.

¹ The court shall take evidence at any time if:

a.

the law grants the right to do so; or

b.

the applicant shows credibly that the evidence is at risk or that it has a legitimate interest.

² The provisions regarding interim measures apply.

If a legal entity is party to proceedings, its management bodies are deemed to be parties when taking evidence.

Litigation shall be preceded by an attempt at conciliation before a conciliation authority.

Conciliation proceedings are not held:

a.

in summary proceedings;

a^bis.⁶⁸

in proceedings on violence, threats or harassment relating to Article 28b SCC⁶⁹ or on electronic surveillance relating to Article 28c SCC;

b.

in proceedings on civil status;

b^bis.⁷⁰

in proceedings on child maintenance and other child-related issues if a parent has requested the child protection authority to intervene before the proceedings (Art. 298b and 298d CC⁷¹);

c.

in divorce proceedings;

d.⁷²

in proceedings for the dissolution or annulment of a registered partnership;

e.

for the following actions arising from the DEBA⁷³:

1.

action for release from a debt (Art. 83 para. 2 DEBA),

2.

action for a declaratory judgment (Art. 85a DEBA),

3.

third party action (Art. 106-109 DEBA),

4.

action for participation (Art. 111 DEBA),

5.

third party actions and actions by the bankrupt estate (Art. 242 DEBA),

6.

action to challenge the schedule of claims (Art. 148 and 250 DEBA),

7.

action to ascertain new assets (Art. 265a DEBA),

8.

action for the recovery of items that are subject to the right of retention (Art. 284 DEBA);

f.

in disputes for which a court of sole cantonal instance has jurisdiction pursuant to Articles 5 and 6;

g.

for principal intervention, counterclaim and third party actions;

h.

if the court has set a deadline for filing the action.

¹ In financial disputes with a value in dispute of at least 100,000 francs, the parties may mutually agree to waive any attempt at conciliation.

² The plaintiff may unilaterally waive conciliation:

a.

if the defendant's registered office or domicile is abroad;

b.

if the defendant's residence is unknown;

c.

in disputes under the Gender Equality Act of 24 March 1995⁷⁴.

¹ In disputes relating to the tenancy and lease of residential and business property, the conciliation authority shall comprise a chairperson and an equal number of representatives of each of the parties.

² In disputes under the Gender Equality Act of 24 March 1995⁷⁵, the conciliation authority shall comprise a chairperson and an equal number of representatives of the employer and employee and of the public and private sectors; the genders must be equally represented.

¹ The conciliation authority shall attempt to reconcile the parties in an informal manner. If it helps to resolve the dispute, a settlement may also include contentious matters that are not part of the proceedings.

² In the disputes mentioned in Article 200, the conciliation authority also provides legal advice to the parties.

¹ Proceedings are initiated by an application for conciliation. The application may be filed in the forms provided for by Article 130 or orally for the record before the conciliation authority.

² The application for conciliation must identify the opposing party and include the prayers for relief and a description of the matter in dispute.

³ The conciliation authority shall serve the opposing party with the application immediately and at the same time summon the parties to a hearing.

⁴ In the disputes mentioned in Article 200, it may as an exception order the exchange of written submissions if it is considering a proposed judgment under Article 210 or a decision under Article 212.

¹ The hearing must take place within two months of receipt of the application or the end of the exchange of written submissions.

² The conciliation authority shall consider the physical records presented to it and may conduct an inspection. If it is considering a proposed judgment under Article 210 or a decision under Article 212, it may also take other evidence unless this will substantially delay the proceedings.

³ The hearing is not public. In the disputes mentioned in Article 200, the conciliation authority may allow full or partial public access to the hearings if there is a public interest.

⁴ With the consent of the parties, the conciliation authority may hold additional hearings. The duration of the proceedings must not exceed twelve months.

¹ The parties must appear in person at the conciliation hearing.

² They may be accompanied by legal agent or a confidant.

³ The following persons are exempt from appearing in person and may send a representative:

a.

persons domiciled outside the canton or abroad;

b.

persons prevented from appearing due to illness or age or for other good cause;

c.

in the disputes mentioned in Article 243, an employee as the delegate of the employer or insurer and the property manager as delegate of the landlord, provided the persons so delegated are authorised in writing to conclude a settlement.

⁴ The opposing party must be notified in advance of the representation.

¹ The statements of the parties may not be recorded or used subsequently in court proceedings.

² The use of the statements in the case of a proposed judgment or a decision by the conciliation authority is reserved.

¹ If the plaintiff is in default, the application for conciliation is deemed to have been withdrawn; the proceedings shall be dismissed as groundless.

² If the defendant is in default, the conciliation authority shall proceed as if no agreement has been achieved (Art. 209-212).

³ If both parties are in default, the proceedings shall be dismissed as groundless.

¹ The costs of the conciliation proceedings are charged to the plaintiff:

a.

if the application is withdrawn;

b.

if the proceedings are dismissed due to default;

c.

if an authorisation to proceed is granted.

² If an action is filed, the costs of the conciliation proceedings become part of the action.

¹ If an agreement is reached, the conciliation authority shall place on record the terms of the settlement, the acceptance of the claim or the unconditional withdrawal of the action, and have the record signed by the parties. Each party receives a copy of the record.

² The settlement, acceptance or unconditional withdrawal shall have the effect of a binding decision.

¹ If no agreement is reached, the conciliation authority records this fact and grants authorisation to proceed:

a.

to the landlord in cases where a rent increase is challenged;

b.

to the plaintiff in all other cases.

² The authorisation to proceed contains:

a.

the names and addresses of the parties and their representatives, if any;

b.

the plaintiff's prayers for relief, a description of the matter in dispute, and any counterclaim;

c.

the date of the initiation of the conciliation proceedings;

d.

the decision on the costs of the conciliation proceedings;

e.

the date of the authorisation to proceed;

f.

the seal of the conciliation authority.

³ The plaintiff is entitled to file the action in court within three months of authorisation to proceed being granted.

⁴ The deadline is 30 days in disputes over the tenancy and lease of residential and business property or the lease of agricultural property. Other statutory or judicial filing deadlines are reserved.

¹ The conciliation authority may submit a proposed judgment to the parties:

a.

in disputes under the Gender Equality Act of 24 March 1995⁷⁶;

b.

in disputes relating to the tenancy and lease of residential and business property or the lease of agricultural property if they concern the deposit of rent, protection against abusive rent, protection against termination, or the extension of the rental relationship;

c.

in other financial disputes, if the value in dispute does not exceed 5,000 francs.

² The proposed judgment may contain a short statement of grounds; otherwise, Article 238 applies by analogy.

¹ The proposed judgment is deemed to be accepted and has the effect of a binding decision if none of the parties rejects it within 20 days of written notification to the parties. The rejection needs no statement of grounds.

² After receiving the rejection, the conciliation authority shall grant authorisation to proceed:

a.

to the rejecting party in matters under Article 210 paragraph 1 letter b;

b.

to the plaintiff in all other cases.

³ If in matters under Article 210 paragraph 1 letter b the action is not filed in time, the proposed judgment is deemed to be accepted and has the effect of a binding decision.

⁴ The parties must be advised in the proposed judgment of its effects in accordance with paragraphs 1 to 3 above.

¹ In financial disputes with a value in dispute not exceeding 2,000 francs, the conciliation authority may render a decision on the merits if the plaintiff so requests.

² The proceedings are oral.

The provisions of this Title apply to ordinary proceedings and, by analogy, to all other proceedings, unless the law provides otherwise.

The ordinary proceedings are initiated by filing the statement of claim.

¹ The statement of claim contains:

a.

the designation of the parties and their representatives, if any;

b.

the prayers for relief;

c.

a statement of the value in dispute;

d.

the allegations of fact;

e.

notice of the evidence offered for each allegation of fact;

f.

the date and signature.

² The following must be filed together with the statement of claim:

a.

a power of attorney where a party is represented;

b.

the authorisation to proceed or the declaration that conciliation is being waived, if applicable;

c.

the available physical records to be offered in evidence;

d.

a list of the evidence offered.

³ The statement of claim may include a statement of legal grounds.

¹ The court shall serve the defendant with the statement of claim and at the same time set a deadline for filing a written statement of defence.

² Article 221 applies to the statement of defence by analogy. The defendant must state therein which of the plaintiff's factual allegations are accepted and which are disputed.

³ The court may order that the statement of defence be limited to specific issues or prayers (Art. 125).

⁴ It shall serve the plaintiff with the statement of defence.

¹ If the statement of defence is not filed within the deadline, the court shall allow the defendant a short period of grace.

² If the statement of defence is not filed by the end of the period of grace, the court shall make a final decision provided the court is in a position to make a decision. Otherwise, it shall summon the parties to the main hearing.

¹ The defendant may file a counterclaim in the statement of defence if the claim made by the defendant is subject to the same type of procedure as the main action.

² If the value of the counterclaim exceeds the material jurisdiction of the court, the court shall transfer both claims to the court with greater material jurisdiction.

³ If a counterclaim is filed, the court shall set a deadline for the plaintiff to file a written defence. The plaintiff may not answer the counterclaim with a counterclaim.

The court shall order a second exchange of written submissions if the circumstances so require.

¹ The court may hold instruction hearings at any time during the proceedings.

² Instruction hearings are held to discuss the matter in dispute in an informal manner, to complete the facts, to attempt to reach an agreement and to prepare for the main hearing.

³ The court may take evidence.

¹ An amendment of the statement of claim is admissible if the new or amended claim is subject to the same type of procedure and:

a.

a factual connection exists between the new or amended claim and the original claim; or

b.

if the opposing party consents to the amendment of the statement of claim.

² If the value of the amended action exceeds the material jurisdiction of the court, the court shall transfer the case to a court with greater material jurisdiction.

³ A limitation of the action is permitted at any time; the seised court retains jurisdiction.

¹ Following the opening of the main hearing, the parties shall present their applications and state the grounds therefor.

² The court shall give them the opportunity to make a reply and rejoinder.

¹ New facts and new evidence are admissible at the main hearings only if presented immediately and:

a.⁷⁸

if they occurred after the exchange of written submissions or after the last instruction hearing (proper nova); or

b.

if they existed before the close of the exchange of written submissions or before the last instruction hearing but could not have been submitted despite reasonable diligence (improper nova).

² If there was neither a second round of written submissions nor an instruction hearing, new facts and new evidence may be submitted without limitation at the beginning of the main hearing.

³ Where the court must establish the facts ex officio, new facts and new evidence are admitted until the court begins its deliberations.

¹ An amendment of the statement of claim at the main hearings is admissible only if:

a.

the conditions under Article 227 paragraph 1 are fulfilled; and

b.⁷⁹

the amendment is based on new facts or new evidence.

² Article 227 paragraphs 2 and 3 apply.

After the party submissions, the court takes the evidence.

¹ After the evidence is taken, the parties may comment on the result of the evidence and on the merits of the case. The plaintiff speaks first. The court shall allow the parties the opportunity for a second round of submissions.

² The parties may jointly dispense with oral closing submissions and request the submission of written party submissions. The court shall set a deadline for the same.

The parties may jointly agree to dispense with the main hearing.

¹ In the event that a party fails to attend the main hearing, the court shall consider the submissions made in accordance with this Code. Moreover, and subject to Article 153, it may rely on the representations of the party present and on the information on file.

² If both parties fail to attend, the proceedings are dismissed as groundless. The court costs are shared equally between the parties.

¹ The court keeps a record of each hearing. This includes in particular:

a.

the place and time of the hearing;

b.

the composition of the court;

c.

the presence of the parties and their representatives;

d.

the prayers for relief, applications and declarations made on record by the parties;

e.

the court's rulings;

f.

the signature of the clerk.

² Statements relating to the facts of the case are placed on record unless they are already included in their written submissions. In addition, they may be recorded on tape, by video, or by other appropriate technical means.

³ The court decides on applications for rectification of the record.

¹ If the court is in a position to make a decision, it shall close the proceedings by deciding not to consider the merits or by making a decision on the merits.

² The court decides by majority.

³ At the request of the successful party, the court shall order enforcement measures.

¹ The court may issue an interim decision if a higher court could issue a contrary decision that would put an immediate end to the proceedings and thereby allow a substantial saving of time or costs.

² The interim decision may be challenged separately; it may not be challenged later together with the final decision.

The decision contains:

a.

the designation and the composition of the court;

b

the place and date of the decision;

c.

the designation of the parties and their representatives;

d.

the conclusions;

e.

the persons and authorities to be served with the decision;

f.

instructions on appellate remedies unless the parties have waived their right to seek the same;

g.

the grounds for the decision, if applicable;

h.

the seal of the court.

¹ The court may give notice of the decision to the parties without providing a written statement of the grounds:

a.

at the main hearing, by handing over the written conclusions to the parties and giving an oral summary of the grounds;

b.

by serving the parties with the conclusions.

² A written statement of the grounds must be provided if one of the parties so requests within 10 days of the notice being given of the decision. If no statement of grounds is requested, the parties are deemed to have waived their right to challenge the decision by appeal or objection.

³ The above is subject to the provisions of the Federal Supreme Court Act of 17 June 2005⁸⁰ on notice of decisions that may be referred to the Federal Supreme Court.

If so provided by the law or if it serves enforcement, the decision shall be published or notice shall be given to the authorities and third parties concerned.

¹ If notice of a settlement, acceptance of the claim or withdrawal of the action is placed on record in court, the parties must sign the record.

² A settlement, acceptance of the claim or withdrawal of the action has the same effect as a binding decision.

³ The court shall dismiss the proceedings.

If for any other reasons the proceedings end without a decision, the proceedings shall be dismissed.

Summary proceedings may be brought:

a.

in the cases designated by law;

b.

for legal protection in clear cases;

c.

for court injunctions;

d.

for interim measures;

e.

for non-contentious matters.

Summary proceedings may be brought in particular in the following cases:

a.⁸⁸

Law of persons:

1.

fixing a time limit for legal transactions by minors or persons subject to a general deputyship (Art. 19a CC⁸⁹),

2.

right of reply (Art. 28l CC),

3.

declaration of presumed death (Art. 35-38 CC),

4.

rectification of the civil status registry (Art. 42 CC);

b.⁹⁰

...

c.

Law of succession:

1.

acceptance of an oral will (Art. 507 CC),

2.

provision of security when inheriting from a person presumed dead (Art. 546 CC),

3.

deferring the division of the estate and ordering measures to secure the claims of the co-heirs towards an insolvent heir (Art. 604 para. 2 and 3 CC);

d.

Property law:

1.

measures to preserve the value and the serviceability of an object in joint property (Art. 647 para. 2 no. 1 CC),

2.

registration of real titles in case of extraordinary adverse possession (Art. 662 CC),

3.

dismissal of an objection to the disposal of a condominium unit (Art. 712c para. 3 CC),

4.

appointment and removal of the condominium administrator (Art. 712q and 712r CC),

5.

provisional registration of statutory mortgages (Art. 712i, 712d, 779k and 837-839 CC),

6.

setting a deadline to provide security and order the dispossession in case of usufruct (Art. 760 and 762 CC),

7.

ordering the liquidation of debts in a usufructuary estate (Art. 766 CC),

8.

measures in favour of the creditor to protect the value of the real estate security interest (Art. 808 para. 1 and 2 and Art. 809-811 CC),

9.⁹¹

appointing an authorised agent on the issue of a mortgage certificate (Art. 850 para. 3 CC),

10.⁹²

cancellation of a mortgage certificate (Art. 856 and 865 CC),

11.

noting of restrictions on powers of disposal and provisional entries in disputed cases (Art. 960 para. 1 sec. 1, 961 para. 1 sec. 1 and 966 para. 2 CC).

Summary proceedings may be brought in particular in the following cases:

a.

General provisions:

1.

deposit of an expired power of attorney with the court (Art. 36 para. 1 CO⁹³),

2.

setting a reasonable deadline to provide security (Art. 83 para. 2 CO),

3.

deposit and sale of an object for the event of an obligee's default (Art. 92 para. 2 and 93 para. 2 CO),

4.

authorisation for performance by a third party (Art. 98 CO),

5.

setting a time limit to perform a contract (Art. 107 para. 1⁹⁴ CO),

6.

deposit of an amount in dispute (Art. 168 para. 1 CO);

b.

Specific contracts:

1.

designation of an expert to verify the calculation of the profit share or commissions (Art. 322a para. 2 and 322c para. 2 CO),

2.

setting a deadline to provide security in the event that a salary is at risk (Art. 337a CO),

3.

setting a time limit in the case of non-contractual performance of work (Art. 366 para. 2 CO),

4.

appointment of an expert to inspect the work (Art. 367 CO),

5.

setting a time limit for the publication of a new edition of a literary or artistic work (Art. 383 para. 3 CO),

6.

return of an object held by an official receiver (Art. 480 CO),

7.

assessing the extent of cover by pledge in the case of joint and several surety (Art. 496 para. 2 CO),

8.

abandonment of debt enforcement proceedings against the guarantor furnishing real security (Art. 501 para. 2 CO),

9.

provision of security by the principal debtor and release from liability (Art. 506 CO);

c.

Company law and the commercial register:⁹⁵

1.

provisional withdrawal of the authority to represent (Art 565 para. 2, 603 and 767 para. 1 CO),

2.

appointment of a joint representative (Art. 690 para. 1, 764 para. 2, 792 sec. 1 and 847 para. 4 CO),

3.

appointment, dismissal and replacement of liquidators (Art. 583 para. 2, 619, 740, 741, 770, 826 para. 2 and 913 CO),

4.

sale at an overall sale price and modalities of sale of immovable property (Art. 585 para. 3 and 619 CO),

5.

appointment of an expert to verify the profit and loss account and the balance sheet of the limited partnership (Art. 600 para. 3 CO),

6.⁹⁶

allowing a period of time in the case of insufficient number of members or lack of corporate bodies (Art. 731b, 819, 908 and 941a CO),

7.⁹⁷

disclosure of information to shareholders and creditors of a company limited by shares, the members of a limited liability company and members of a cooperative (Art. 697 para. 4, 802 para. 4, 857 para. 3 and 958e CO),

8.

special audit of a company limited by shares (Art. 697a to 697g CO),

9.

convening a general meeting of the shareholders of a company limited by shares or the members of a cooperative, putting an item on the agenda and calling the assembly of the members of a limited liability company (Art. 699 para. 4, 805 para. 5 sec. 2 and 881 para. 3 CO),

10.

designation of a representative of the company or the cooperative in the event of a resolution of the general meeting being challenged by the management (Art. 706a para. 2, 808c and 891 para. 1 CO),

11.

appointment and removal of the auditors (Art. 731b CO),

12.

deposit of amounts of claims in case of liquidation (Art. 744, 770, 826 para. 2 and 913 CO),

13.⁹⁸

removal of the directors and auditors of a cooperative (Art. 890 para. 2 CO);

14.⁹⁹

reinstatement of a deleted legal entity in the commercial register (Art. 935 CO);

d.

Securities law:

1.

cancellation of securities (Art. 981 CO),

2.

prohibition of paying a bill of exchange and deposit of the amount payable under the bill (Art. 1072 CO),

3.

lapse of the authority conferred by the creditors meeting on the representative of the community of creditors (Art. 1162 para. 4 CO),

4.

convening a creditors meeting on the application by the bond creditors (Art. 1165 para. 3 and 4 CO).

Summary proceedings may be brought in particular in the following cases:

a.

decisions made in matters of clearance to proceed, bankruptcy, attachment and composition;

b.

admission of a belated objection (Art. 77 para. 3 DEBA¹⁰⁰) and of the objection in the enforcement of bills of exchange (Art. 181 DEBA);

c.

revocation or suspension of the debt collection proceedings (Art. 85 DEBA);

d.

decision on the existence of new assets (Art. 265a para. 1-3 DEBA);

e.

ordering the separation of property (Art. 68b DEBA).

Summary proceedings may be brought in particular in the following cases:

a.

appointing and replacing members of an arbitral tribunal (Art. 179 para. 2-5 PILA¹⁰²);

b.

challenging and removing a member of an arbitral tribunal (Art. 180a para. 2 and Art. 180b para. 2 PILA);

c.

obtaining assistance from the state court in enforcing interim measures (Art. 183 para. 2 PILA) and in taking evidence (Art. 184 para. 2 PILA);

d.

obtaining other forms of assistance from the state court in the arbitration proceedings (Art. 185 PILA);

e.

obtaining assistance from the state court in the case of foreign arbitration proceedings (Art. 185a PILA);

f.

depositing the award and certifying its enforceability (Art. 193 PILA);

g.

acknowledging and executing foreign awards (Art. 194 PILA).

¹ An application must be made to initiate proceedings.

² The application must be filed in accordance with Article 130; in simple or urgent cases, it may be filed orally on record.

If the request does not seem obviously inadmissible or unfounded, the court shall give the opposing party the opportunity to comment orally or in writing.

¹ Evidence must be provided in the form of physical records.

² Other evidence is admissible in the following cases:

a.

if the taking of evidence does not substantially delay the proceedings;

b.

if required by the purpose of the proceedings; or

c.

if the court must establish the facts ex officio.

The court establishes the facts ex officio:

a.

in matters of bankruptcy and composition;

b.

in non-contentious matters.

¹ The court may dispense with a hearing and decide on the basis of the case files, unless the law provides otherwise.

² If an order in a non-contentious matter retrospectively proves incorrect, it may be cancelled or modified ex officio or on request, provided this does not conflict with the law or the principle of legal certainty.

¹ The court shall declare the case admissible under the summary procedure where:

a.

the facts are undisputed or immediately provable; and

b.

the legal situation is clear.

² The case is subject to the principle of ex-officio assessment.

³ If the case is not admissible under the foregoing procedure, the court does not consider the case.

¹ Any person who holds title to immovable property may request the court to prohibit any trespass on the property and, on request, to impose a fine not exceeding 2,000 francs on any person who violates the injunction. The injunction may be temporary or indefinite.

² The applicant must prove his or her real title by means of physical records and credibly show a current or imminent trespass.

Notice of the injunction must be published and affixed to the property in an easily visible sign.

¹ Any person who is not prepared to recognise the injunction may file an opposition with the court within 30 days of notice thereof being given by publication and at the property. The opposition needs no statement of grounds.

² Opposition renders the injunction ineffective towards the opposing person. In order to validate the injunction, an action must be filed in court.

Subject to Articles 272 and 273, summary procedure applies to measures for protection of the marital union, and in particular to:

a.

the measures under Articles 172-179 CC¹⁰⁸;

b.

the extension of a spouse's power to represent the marital union (Art. 166 para. 2 sec. 1 CC);

c.

the authorisation of a spouse to dispose of the family home (Art. 169 para. 2 CC);

d.

the duty of a spouse to provide information on his or her income, assets and debts (Art. 170 para. 2 CC);

e.

the separation of property and the reinstatement of the prior property regime (Art. 185, 187 para. 2, 189 and 191 CC);

f.

the obligation of spouses to cooperate in drawing up an inventory (Art. 195a CC);

g.

the determination of payment deadlines and the provision of security between the spouses outside proceedings on the division of the marital property (Art. 203 para. 2, 218, 235 para. 2 and 250 para. 2 CC);

h.

the spouse's consent to the renunciation or acceptance of an inheritance (Art. 230 para. 2 CC);

i.

directions to debtors and the provision of security for post-matrimonial maintenance outside proceedings on post-matrimonial maintenance (Art. 132 CC).

The court establishes the facts ex officio.

¹ The court shall hold a hearing. It may dispense with the hearing only if the parties' submissions indicate that the facts are clear or undisputed.

² The parties must appear in person if the court does not exempt them for reasons of illness or age or for other good cause.

³ The court shall attempt to find an agreement between the parties.

Independent actions are decided in simplified proceedings.

¹ The court shall investigate the facts ex officio.

² The parties and third parties must cooperate in the tests required to establish paternity provided such tests not pose a danger to their health. The provisions concerning the parties' and third parties' right to refuse are not applicable.

³ The court decides without being bound by the requests of the parties.

¹ The court hears the parents in person when ruling on matters relating to a child.

² The court may ask the parents to attempt mediation.

¹ The child is heard in person and in an appropriate way by the court or by a third party appointed for this purpose, to the extent that the child's age or other good cause does not preclude a hearing.

² Only the information that is relevant for the decision is placed on record. This information shall be communicated to the parents or the child's welfare agent.

³ A child who has the capacity to consent may contest the refusal to grant a hearing by filing an objection.

¹ If necessary, the court shall appoint a person experienced in welfare and legal matters to act as welfare agent for the child.

² The court shall consider appointing a representative in particular if:

a.¹²⁸

the parents submit different applications regarding:

1.

allocation of parental responsibility,

2.

allocation of residence,

3.

important questions concerning their personal relations with the child,

4.

sharing responsibilities for care,

5.

maintenance payments;

b.¹²⁹

the child protection authority or one of the parents so requests;

c.

based on hearing with the parents or the child or based on other reasons, the court:¹³⁰

1.¹³¹

has serious doubts about the parents' joint applications relating to the issues listed under letter a, or

2.

is considering ordering measures for the protection of the child.

³ If the child with the capacity to consent so requests, a representative must be appointed. The child may challenge the rejection of his or her request by filing an objection.

The child's representative may file applications and appellate remedies to the extent they concern:

a.

the allocation of the parental responsibility;

b.

the allocation of residence;

c.

important questions of personal relations;

d.

sharing responsibilities for care;

e.

maintenance payments;

f.

measures for the protection of the child.

Notice is the decision is given:

a.

to the parents;

b.

to the child, if he or she is at least 14 years old;

c.¹³³

to the welfare agent, if any, to the extent the decision concerns the following issues:

1.

the allocation of the parental responsibility,

2.

the allocation of residence,

3.

important questions of personal relations,

4.

sharing responsibilities for care,

5.

maintenance payments,

6.

measures for the protection of the child.

If maintenance payments are agreed in a maintenance agreement or in the decision, the agreement or decision must indicate:

a.

the income and assets of each parent on which the agreement or decision is based;

b.

the amount determined for each child;

c.

any shortfall in the amount to cover the reasonable maintenance of each child;

d.

whether and to what extent the maintenance payments are modified to reflect changes in living costs.

¹ Summary procedure applies in particular in the case of:

a.

decisions under the Hague Convention of 25 October 1980¹³⁷ on the Civil Aspects of International Child Abduction and under the European Convention of 20 May 1980¹³⁸ on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children;

b.

the payment of an special financial contribution to cover unforeseen extraordinary needs of the child (Art. 286 para. 3 CC¹³⁹);

c.

notice to debtors and the provision of security for child support outside proceedings on the parents' maintenance obligations (Art. 291 and 292 CC).

² The provisions of the Federal Act of 21 December 2007¹⁴⁰ on International Child Abduction and the Hague Conventions on the Protection of Children and Adults are reserved.

¹ If paternity is established, the defendant may be ordered to deposit or advance appropriate amounts for the maintenance of the child.

² If the action for maintenance has been filed together with the paternity action, the defendant must, at the plaintiff's request:

a.

deposit the costs for the birth and the suitable contributions towards the maintenance of mother and child provided paternity has been shown credibly;

b.

make suitable contributions towards the maintenance of the child support provided must be assumed and the assumption cannot be refuted by immediately available evidence.

¹ The court that has jurisdiction to decide the paternity action shall also decide on the deposit, the advance payment, the disbursement of deposited amounts and the refund of advances.

² In the case of an action for maintenance, the court shall also decide on parental responsibility and other child-related issues.¹⁴²

Summary procedure applies in particular to:¹⁴³

a.

the determination of monetary contributions to the maintenance of the partnership and the notice to debtors (Art. 13 para. 2 and 3 of the Same-Sex Partnerships Act of 18 June 2004¹⁴⁴, SSPA),

b.

the authorisation of a partner to dispose of the common home (Art. 14 para. 2 SSPA),

c.

the expansion and revocation of a partner's power to represent the partnership (Art. 15 para. 2 lt. a and para. 4 SSPA),

d.

the obligation of a partner to provide information on his or her income, assets and debts (Art. 16 para. 2 SSPA),

e.

the determination, adjustment or cancellation of monetary contributions and the regulation of the use of the home and the household effects (Art. 17 para. 2 and 4 SSPA),

f.

the obligation of the partners to cooperate in taking an inventory (Art. 20 para. 1 SSPA),

g.

the restriction of a partner's power to dispose of certain assets (Art. 22 para. 1 SSPA),

h.

the granting of deadlines for the repayment of debts between the partners (Art. 23 para. 1 SSPA).

Articles 272 and 273 apply by analogy to the procedure.

The provisions concerning the divorce proceedings apply by analogy to the dissolution and annulment of same-sex partnerships.

Where a person has adopted the minor child of his or her registered partner, Articles 295-302 apply by analogy.

An objection is admissible against:

a.

final and interim decisions and decisions on interim measures of first instance that are not subject to appeal;

b.

other decisions and procedural rulings of first instance:

1.

in the cases provided by the law,

2.

if they threaten to cause not easily reparable harm;

c.

undue delay by the court.

An objection is admissible on the following grounds:

a.

incorrect application of the law;

b.

obviously incorrect establishment of the facts.

¹ The objection must be filed in writing and with a statement of grounds with the appellate court within 30 days of service of a decision and grounds therefor or of the subsequent service of the statement of the grounds (Art. 239).

² If the objection is against a decision taken in summary proceedings or against a procedural ruling, it must be filed within 10 days unless the law provides otherwise.

³ The contested decision or procedural ruling must be enclosed if it has been served on the party.

⁴ The objection on the grounds of undue delay may be filed at any time.

¹ The appellate court serves the objection on the opposing party so that he or she may comment in writing thereon, unless the objection is obviously inadmissible or obviously unfounded.

² The answer to the objection must be filed within the same period as applies to the objection.

Cross objections are not admissible.

The appellate court may invite the lower court to comment.

¹ The objection does not suspend the legal effect and enforceability of the contested decision.

² The appellate court may suspend the enforceability of the contested decision. If necessary, it shall order protective measures or the provision of security.

¹ New applications, new allegations of fact and new evidence are not admissible.

² Special provisions of law are reserved.

¹ The appellate court shall request the case files from the lower court.

² It may decide on the basis of the case files.

³ In the event that it upholds the objection, the appellate court shall:

a.

set aside the decision or the procedural ruling and remit the case to the lower court; or

b.

make a new decision provided the appellate court is in the position to make a decision.

⁴ If an objection of undue delay is upheld, the appellate court may set a deadline within which the lower court must deal with the case.

⁵ The appellate court shall give notice of its decision to the parties together with a written statement of grounds.

¹ If the objection is against a decision of the enforcement court under Articles 38 to 52 of the Lugano Convention of 30 October 2007¹⁵¹ on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, the appellate court shall freely examine the grounds for refusal provided in the Convention.

² The objection has suspensive effect. Protective measures, in particular attachments under Article 271 paragraph 1 number 6 DEBA¹⁵², are reserved.

³ The deadline for filing the objection against the enforcement declaration is governed by Article 43 paragraph 5 of the Convention.

¹ A party may request the court that has decided as final instance to review the final decision if:

a.

the party subsequently discovers significant facts or decisive evidence that could not have been submitted in the earlier proceedings, excluding facts and evidence that arose after the decision;

b.

criminal proceedings have established that the decision was influenced to the detriment of the party concerned by a felony or misdemeanour, even if no one has been convicted by the criminal court; if criminal proceedings are not possible, proof may be provided in some other manner;

c.

it is claimed that the acceptance, withdrawal or settlement of the claim is invalid.

² A review on the grounds of a violation of the European Convention on Human Rights of 4 November 1950¹⁵³ (ECHR) may be requested if:

a.

the European Court of Human Rights has determined in a final judgment that the ECHR or its protocols have been violated;

b.

compensation is not an appropriate remedy for the effects of the violation; and

c.

the review is necessary to remedy the violation.

¹ An application for a review must be filed in writing with a statement of the grounds within 90 days of the discovery of the grounds for review.

² The right to request a review expires 10 years after the decision comes into force, except in cases under Article 328 paragraph 1 letter b.

The court shall serve the application for the review on the opposing party so that he or she may respond, unless the request is obviously inadmissible or obviously unfounded.

¹ A request for a review does not suspend the legal effect and enforceability of the decision.

² The court may suspend the enforceability of the contested decision. If necessary, it shall order protective measures or the provision of security.

The decision on the application for review may be challenged by way of objection.

¹ If the court upholds the request for a review, it shall quash its earlier decision and make a new one.

² In the new decision, the court shall also decide on the costs of the earlier proceedings.

³ It shall give notice of its decision to the parties together with a written statement of grounds.

¹ If the conclusions of the decision are unclear, contradictory or incomplete, or if they do not correspond with the statement of grounds, the court shall ex officio or at the request of a party provide an explanation or rectification of the decision. The request must indicate the relevant parts and the requested changes.

² Articles 330 and 331 apply by analogy. The court does not require the parties to comment when correcting typographical or arithmetical errors.

³ The decision on the request for explanation or rectification may be contested by objection.

⁴ Notice of the explained or rectified decision shall be given to the parties.

¹ Decisions are enforced according to the provisions of this chapter.

² If a decision relates to the payment of money or provision of security, it is enforced according to the provisions of the DEBA¹⁵⁴.

³ The recognition, the declaration of enforceability and the enforcement of foreign decisions are governed by this chapter, unless an international treaty or the PILA¹⁵⁵ provides otherwise.

¹ A decision is enforceable, if:

a.

it is legally binding and the court has not suspended its enforcement (Art. 325 para. 2 and 331 para. 2); or

b.

it is not yet legally binding, but its early enforcement has been authorised.

² The court that has made the decision on enforceability shall certify the enforceability of the decision on request.

¹ If the court making the decision has already ordered the necessary enforcement measures (Art. 236 para. 3), the decision may be directly enforced.

² The unsuccessful party may ask the enforcement court to suspend enforcement; Article 341 applies by analogy.

¹ If the decision may not be directly enforced, a request for enforcement must be submitted to the enforcement court.

² The applicant must establish that the requirements for enforcement apply and produce the necessary physical records.

¹ Mandatory jurisdiction to order the measures of enforcement or to suspend the enforcement lies with the court:

a.

at the domicile or registered office of the unsuccessful party;

b.

at the place where the measures are to be taken; or

c.

at the place where the decision to be enforced was made.

² The court decides in summary proceedings.

The enforcement court may order protective measures, if necessary without hearing the opposing party beforehand.

¹ The enforcement court shall examine enforceability ex officio.

² It shall allow the unsuccessful party a brief period within which to file its comments.

³ On the merits, the unsuccessful party may only argue that matters preventing the enforcement of the decision have occurred since notice thereof was given, such as extinction, deferment, prescription or forfeiture of the right to due performance. Extinction and deferment must be proven by physical records.

Decisions providing for conditional performance or performance that is subject to counter-performance may not be enforced until the enforcement court has determined that the condition is fulfilled or that the counter-performance has been duly offered, rendered, or guaranteed.

¹ If the decision provides for an obligation to act, refrain from acting or to tolerate something, the enforcement court may:

a.

issue a threat of criminal penalty under Article 292 SCC¹⁵⁷;

b.

impose a disciplinary fine not exceeding 5,000 francs;

c.

impose a disciplinary fine not exceeding 1,000 francs for each day of non-compliance;

d.

order a compulsory measure such as taking away a movable item or vacating immovable property; or

e.

order performance by a third party.

² The unsuccessful party and third parties must provide the required information and tolerate the required searches.

³ The person entrusted with enforcement may request the assistance of the competent authorities.

¹ If the decision relates to a declaration of intent, the enforceable decision takes the place of the declaration.

² If the declaration concerns a public register, such as the land register or the commercial register, the court making the decision shall issue the required instructions to the registrar.

¹ The prevailing party may demand:

a.

damages if the unsuccessful party does not follow the orders of the court;

b.

conversion of the performance due into the payment of money.

² The enforcement court shall determine the relevant amount.

Third parties may contest enforcement decisions by filing an objection if the decision affects their rights.

Official records relating to any type of performance may be enforced in the same way as judicial decisions if:

a.

the obligee expressly declares in the record that he or she accepts direct enforcement;

b.

the legal ground for the performance due is mentioned in the record; and

c.

the performance due is:

1.

sufficiently specified in the record,

2.

accepted in the record by the obligee, and

3.

due.

Official records are not directly enforceable if they concern performance:

a.

under the Gender Equality Act of 24 March 1995¹⁵⁸;

b.

arising from the tenancy and lease of residential and business property or the lease of agricultural property;

c.

under the Participation Act of 17 December 1993¹⁵⁹;

d.

arising from employment relations or under the Recruitment Act of 6 October 1989¹⁶⁰;

e.

arising from consumer contracts (Art. 32).

An enforceable record relating to performance in money is deemed to be a title setting aside an objection under Articles 80 and 81 DEBA¹⁶¹.

¹ If the enforcement of a record relating to another form of performance is sought, at the request of the obligor the notary public shall serve the obligee with a certified copy of the record, setting a deadline of 20 days for performance. The obligor receives a copy of the notification.

² If performance is not rendered within the deadline, the obligor may submit a request for enforcement to the enforcement court.

¹ The obligee may contest his or her obligation to render performance only if the objection raised can be immediately proven.

² If a declaration of intent is owed, the decision of the enforcement court takes the place of the declaration. The enforcement court shall issue the required instructions in accordance with Article 344 paragraph 2.

The judicial review of the performance due is reserved in every case. In particular the obligee may at any time file a claim for a declaratory judgment that the obligation does not or no longer exists or that it has been suspended.

¹ An arbitral award is subject to objection to the Federal Supreme Court.

² The procedure is governed by the Federal Supreme Court Act of 17 June 2005¹⁷³, unless otherwise provided in this Chapter.

¹ By express declaration in the arbitration agreement or in a subsequent agreement, the parties may agree that the arbitral award may be contested by way of objection to the cantonal court that has jurisdiction under Article 356 paragraph 1.

² The procedure is governed by Articles 319 to 327, unless otherwise provided in this Chapter. The decision of the cantonal court is final.

An objection is only admissible after the means of arbitral appeal provided for in the arbitration agreement are exhausted.

An objection is admissible against:

a.

partial and final awards;

b.

interim awards on the grounds listed in Article 393 letters a and b.

An arbitral award may be contested on the following grounds:

a.

the single arbitrator was appointed or the arbitral tribunal composed in an irregular manner;

b.

the arbitral tribunal wrongly declared itself to have or not to have jurisdiction;

c.

the arbitral tribunal decided issues that were not submitted to it or failed to decide on a prayer for relief;

d.

the principles of equal treatment of the parties or the right to be heard were violated;

e.

the award is arbitrary in its result because it is based on findings that are obviously contrary to the facts as stated in the case files or because it constitutes an obvious violation of law or equity;

f.

the costs and compensation fixed by the arbitral tribunal are obviously excessive.

After hearing the parties, the appellate court may remit the award to the arbitral tribunal, setting a deadline to rectify or amend it.

¹ If the award is not remitted to the arbitral tribunal or if it is not rectified or amended by the tribunal within the set deadline, the appellate court shall decide and, if the objection is approved, shall set aside the award.

² If the award is set aside, the arbitral tribunal shall make a new award consistent with the considerations taken into account in the decision to remit the case. If the tribunal is no longer complete, Article 371 applies.¹⁷⁴

³ Setting aside may be limited to certain parts of the award if the other parts do not depend on them.

⁴ If the arbitral award is contested on the grounds that the compensation and costs are obviously excessive, the appellate court may itself decide on them.

¹ A party may request the ordinary court that has jurisdiction under Article 356 paragraph 1 to review an arbitral award if:

a.

the party subsequently discovers significant facts or decisive evidence that could not have been submitted in the earlier proceedings, excluding facts and evidence that arose after the arbitral award was made;

b.

criminal proceedings have established that the arbitral award was influenced to the detriment of the party concerned by a felony or misdemeanour, even if no one is convicted by a criminal court; if criminal proceedings are not possible, proof may be provided in some other manner;

c.

it is claimed that the acceptance, withdrawal or settlement of the claim is invalid;

d.¹⁷⁵

a ground for challenge under Article 367 paragraph 1 letter c only came to light after conclusion of the arbitration proceedings despite exercising due diligence and no other legal remedy is available.

² The review on the grounds of a violation of the ECHR¹⁷⁶ may be requested if:

a.

the European Court of Human Rights has determined in a final judgment that the ECHR or its protocols have been violated;

b.

compensation is not an appropriate remedy for the effects of the violation; and

c.

the review is necessary to remedy the violation.

¹ The request for review must be filed within 90 days of discovery of the grounds for review.

² The right to request for a review expires 10 years after the award comes into force, except in cases under Article 396 paragraph 1 letter b.

The procedure is governed by Articles 330 to 331.

¹ If the court approves the request for review, it shall set aside the arbitral award and remit the case to the arbitral tribunal for a new decision.

² If the arbitral tribunal is no longer complete, Article 371 applies.

¹ Proceedings that are pending when this Code comes into force are governed by the previous procedural law until the close of the proceedings before the respective instance.

² Territorial jurisdiction is governed by the new law. However, jurisdiction conferred under the previous law continues.

¹ Appellate remedies are governed by the law in force when notice of the decision is given to the parties.

² The review of a decision notified under the previous law is governed by the new law.

The validity of an agreement on jurisdiction is governed by the law in force at the time of conclusion of the agreement.

¹ The validity of arbitration agreements concluded before the commencement of this Code is governed by the law that favours the agreement.

² Arbitration proceedings that are pending on the commencement of this Code are governed by the previous law. The parties may, however, agree on the application of the new law.

³ Appellate remedies are governed by the law in force when notice of the arbitral award is given to the parties.

⁴ Judicial proceedings under Article 356 that are pending on the commencement of this Code are governed by the previous law.

In proceedings that are pending when the Amendment of 28 September 2012 to this Code comes into force, the new law applies to procedural acts from the date on which the Amendment comes into force

¹ The new law applies to proceedings that are pending when the Amendment of 20 March 2015 comes into force.

² New prayers for relief that are filed as a result of the change in the law applicable are permitted; uncontested parts of a decision remain binding unless they are so closely materially connected with prayers for relief that have yet to be judged that it is reasonable to judge the entire matter.

¹ The new law applies to divorce proceedings that are pending when the Amendment of 19 June 2015 comes into force.

² New prayers for relief that are filed as a result of the change in the law applicable are permitted; uncontested parts of a decision remain binding unless they are so closely materially connected with prayers for relief that have yet to be judged that it is reasonable to judge the entire matter.