No oral proceedings by video-conference if parties do not agree

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Case No. 4A_180/2020 (Supreme Court) | Decision of 6 July 2020

Oral proceedings by video-conferencing are currently en vogue, e.g. in the U.K. and The Netherlands, just to name a few. When all parties agree, I have no issue with that. But I am troubled when parties to proceedings are forced into video-conferencing even when they don’t want them, e.g. in first instance proceedings at the EPO; see this Blog here.

Under the Swiss Civil Procedure Code (CPC), the Supreme Court had to deal with an appeal of a party who did not consent with the main hearing being held by video-conference at the Commercial Court Zurich. The hearing was held nevertheless by Zoom, in accordance with a procedural decision of 1 April 2020 (you can’t make this up) — and the respective party did not attend. It was bound to happen: The Supreme Court has now set aside the judgment on the merits in the aftermath of the hearing, in no uncertain terms.

The Supreme Court holds that the CPC requires the physical presence of the persons summoned and the members of the court at the same place. This results, for example, from the provisions governing appearance at the main hearing and the consequences of default; see, for example, Art. 133 lit. d, Art. 134,  Art. 147(1) CPC. The Code of Civil Procedure thus conceives the main hearing as an oral hearing in the courtroom with the parties and members of the court physically present.

On a side note, the EPC is not much different in this respect; see e.g. R. 115(2) EPC (emphasis added); yet a further argument why I believe that the recent draconian move of 1 April 2020 [sic!] to make videoconferencing in first instance proceedings at the EPO mandatory should be revisited:

If a party duly summoned to oral proceedings before the European Patent Office does not appear as summoned, the proceedings may continue without that party.

For this and yet further reasons, the Supreme Court allowed the appeal and set the judgment of the Zurich Commercial Court aside. In doing so, it explicitly did not address the security concerns regarding the use of the ZOOM Cloud Meetings app. You don’t think there are any? The zoom-bombed bond hearing in Florida on 5 August 2020 in the case of Graham Clark, the alleged mastermind of a recent bitcoin scam through the accounts of high-profile Twitter users, is a prime example of what can go wrong.

Reported by Martin WILMING


Case No. 4A_180/2020 (Supreme Court) | Decision of 6 July 2020


Panel of Judges:

    • Dr. Christina KISS
      • Dr. Fabienne HOHL
      • Dr. Martha NIQUILLE
      • Dr. Yves RÜEDI
      • Marie-Chantal MAY-CANNELLAS

Court Clerk:

    • Christian STÄHLE

Representative(s) of Defendant / Appellant:

Representative(s) of Respondent / Plaintiff:



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One Reply to “No oral proceedings by video-conference if parties do not agree”

  1. I have difficulty finding a proper legal basis for the President’s decision of only allowing oral proceedings in examination in the form of video conferences. A mere reference to Art 10(2,a) and Art 116 does not seem a proper legal basis as it changes not only the letter but also the spirit of the EPC. OP have never been envisaged in the EPC otherwise than with the presence of the parties. That the President has such extended powers to amend the EPC is very doubtful.

    I am awaiting what the Boards of Appeal will have to say about this “ordre de mufti”.

    The same applies for the pilot in opposition. A least there all parties have to agree.

    Epi had send a letter of protest to the president. I doubt they never got a reply.

    I am also wondering of what happens at the boards of appeal. There again, the parties have to agree, but in the RPBA valid since 01.01.2020, there is no trace of the procedure in case of videoconferences. The mere reference in Art 12(1,e) RPBA20 does not seem sufficient to me.

    According to the last communiqué of the BA of 29.07.2020, if parties want OP in Haar, the participation is limited to two person per party. Where is the legal basis of this measure?

    Nothing against adapting to a new situation which might stay for a while, but only in a legal way!

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