Be prepared for some proposed changes to the Civil Procedure Code

The current Swiss Civil Procedure Code has been enacted in 2011, and the Federal Council had been asked to assess its practicality and to come up with suggestions for improvement, if appropriate (motion 14.4008).

The first draft of proposed changes has been published on March 2, together with exhaustive explanatory notes. The consultation process is open until June 11, 2018.

Proceedings at the Federal Patent Court are governed by the Civil Procedure Code, and the proposed changes would have quite some implications for FPC proceedings. In my perception, the most important aspects are the following:

  1. Costs

First, it is proposed that only half of the expected court fee may be ordered as an initial advance payment; see Art. 98(1) of the draft. Notably, this is already the current practice at the FPC since December 2015; see this Blog here.

It is also proposed that a successful plaintiff shall get his advance payment(s) refunded; see Art. 111(1) of the draft.

Collection risk

Currently, the court keeps the plaintiff’s advance payment(s) irrespective of the outcome on the merits and orders that the defendant refunds the amount to the successful plaintiff. The proposed amendment actually shifts a collection risk from (successful) plaintiffs to the State.

Finally, legal aid is currently not available for the precautionary taking of evidence. It is now proposed to explicitly provide for this possibility in Art. 118(2) of the draft.

  1. Private expert opinions
A smart party expert

Private expert opinions are newly listed as a ‘physical record’ in Art. 177 of the draft. Note that private expert opinions are currently not considered as a means of evidence according to Art. 168 CPC, in particular not as a ‘physical record’ in the sense of Art. 177 CPC; see e.g. BGE 141 III 433. The dispatch of the Federal Council on the current CPC held that private expert opinions are admissible, but will only be considered as a statement of a party; see BBl 2006, p. 7325, 3rd paragraph. If the proposed change is adopted, party expert opinions would henceforth be subject to the court’s free assessment of evidence according to Art. 157 CPC.

  1. Ex-parte interim measures

Ex-parte interim measures are a powerful tool – when granted. However, a request for ex-parte interim measures may backfire when the court dismisses the request. According to the current Art. 265 CPC, the court will summon the parties to a hearing and set the respondent a deadline to comment in writing. As a consequence, the respondent is informed about the ex-parte request, and there is a risk that a later enforcement of the measure might be frustrated.

It is held in Art. 265(4) of the draft that the court shall not inform the respondent of the decision and shall abstain from issuing the summons or setting the respondent a deadline to respond until it has been decided on an appeal against the decision to refuse ex-parte interim measures, if requested so by the applicant.

Reported by Martin WILMING

DRAFT OF CHANGES

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The draft changes are also available in French language here; I did not grab the Italian version.

EXPLANATORY NOTES

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The explanatory notes are also available in French language here; I did not grab the Italian version.

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