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.

¹ Parties and third parties have a duty to co­oper­ate in the tak­ing of evid­ence. In par­tic­u­lar, they have the duty:

a.

to make a truth­ful de­pos­ition as a party or a wit­ness;

b.⁶³

to pro­duce the phys­ic­al re­cords, with the ex­cep­tion of doc­u­ments form­ing cor­res­pond­ence between a party or a third party and a law­yer who is en­titled to act as a pro­fes­sion­al rep­res­ent­at­ive, or with a pat­ent at­tor­ney as defined in Article 2 of the Patent Attorney Act of 20 March 2009⁶⁴;

c.

to al­low an ex­am­in­a­tion of their per­son or prop­erty by an ex­pert.

² The court has free dis­cre­tion to de­cide on the duty of minors to co­oper­ate.⁶⁵ It shall take ac­count of the child's wel­fare.

³ Third parties that are un­der a duty to co­oper­ate are en­titled to reas­on­able com­pens­a­tion.

¹ The court shall ad­vise the parties and third parties of their duty to co­oper­ate, the right to re­fuse to co­oper­ate and the con­sequences of de­fault.

² The court may not con­sider the evid­ence taken if parties or third parties have not been ad­vised of their right to re­fuse to co­oper­ate un­less the per­son con­cerned con­sents or his or her re­fus­al would not have been jus­ti­fied.

The court may not in­fer from a party's or third party's le­git­im­ate re­fus­al to co­oper­ate that the al­leged fact is proven.

¹ A party may re­fuse to co­oper­ate if:

a.

the tak­ing of evid­ence would ex­pose a close as­so­ci­ate as defined in Art­icle 165 to crim­in­al pro­sec­u­tion or civil li­ab­il­ity;

b.

the dis­clos­ure of a secret would be an of­fence un­der Art­icle 321 of the Swiss Crim­in­al Code (SCC)⁶⁶; the fore­go­ing does not ap­ply to aud­it­ors; Art­icle 166 para­graph 1 let­ter b third sub­set ap­plies by ana­logy.

² Oth­er con­fid­ants en­trus­ted with leg­ally pro­tec­ted secrets may re­fuse to co­oper­ate if they cred­ibly demon­strate that the in­terest in keep­ing the secret out­weighs the in­terest in find­ing the truth.

If a party re­fuses to co­oper­ate without val­id reas­ons, the court shall take this in­to ac­count when ap­prais­ing the evid­ence.

¹ The fol­low­ing per­sons have the right to re­fuse to co­oper­ate:

a.

any per­son who is or was mar­ried to or co­hab­its with a party;

b.

any per­son who has a child with a party;

c.

any per­son who is re­lated to a party by birth or mar­riage in dir­ect line or col­lat­er­ally up to the third de­gree;

d.

the foster par­ents, foster chil­dren and foster sib­lings of a party;

e.⁶⁷

the per­son ap­poin­ted guard­i­an or deputy for a party.

² A re­gistered part­ner­ship is deemed equi­val­ent to mar­riage.

³ Step-sib­lings are deemed equi­val­ent to sib­lings.

¹ Any third party may re­fuse to co­oper­ate:

a.

in es­tab­lish­ing facts that would ex­pose him or her or a close as­so­ci­ate as defined in Art­icle 165 to crim­in­al pro­sec­u­tion or civil li­ab­il­ity;

b.

to the ex­tent that the rev­el­a­tion of a secret would be an of­fence by vir­tue of Art­icle 321 SCC⁶⁸; aud­it­ors ex­cep­ted; however, with the ex­cep­tion of law­yers and cler­ics, third parties must co­oper­ate if they are sub­ject to a dis­clos­ure duty or if they have been re­leased from duty of secrecy, un­less they show cred­ibly that the in­terest in keep­ing the secret takes pre­ced­ence over the in­terest in find­ing the truth;

c.⁶⁹

in es­tab­lish­ing facts that have been con­fided in him or her in his or her of­fi­cial ca­pa­city as pub­lic of­fi­cial as defined in Art­icle 110 para­graph 3 SCC or as a mem­ber of a pub­lic au­thor­ity, or facts that have come to his or her at­ten­tion in ex­er­cising his or her of­fice or while car­ry­ing out an aux­il­i­ary activ­ity for a pub­lic of­fi­cial or an au­thor­ity; he or she must co­oper­ate if he or she is sub­ject to a dis­clos­ure duty or if he or she has been au­thor­ised to testi­fy by his or her su­per­i­or au­thor­ity;

d.⁷⁰

when asked to testi­fy as an om­bud­sper­son, mar­riage or fam­ily coun­sel­lor or me­di­at­or on facts that have come to his or her at­ten­tion in the course of his or her activ­it­ies;

e.

when asked in his or her ca­pa­city as pro­fes­sion­al or aux­il­i­ary per­son en­gaged in the pub­lic­a­tion of in­form­a­tion in the ed­it­or­i­al part of a peri­od­ic­al to re­veal the iden­tity of the au­thor or the con­tent or source of his or her in­form­a­tion.

² The con­fid­ants of oth­er leg­ally pro­tec­ted secrets may re­fuse to co­oper­ate if they show cred­ibly that the in­terest in keep­ing the secret out­weighs the in­terest in es­tab­lish­ing the truth.

³ The spe­cial pro­vi­sions of so­cial se­cur­ity law con­cern­ing the dis­clos­ure of data are re­served.

¹ If a third party re­fuses to co­oper­ate without jus­ti­fic­a­tion, the court may:

a.

im­pose a dis­cip­lin­ary fine up to 1,000 francs;

b.

threaten sanc­tions un­der Art­icle 292 SCC⁷¹;

c.

or­der the use of com­puls­ory meas­ures;

d.

charge the third party the costs caused by the re­fus­al.

² The de­fault of a third party has the same con­sequences as re­fus­ing to co­oper­ate without a val­id reas­on.

³ The third party may chal­lenge the court's or­der by way of ob­jec­tion.

¹ The fol­low­ing evid­ence is ad­miss­ible:

a.

testi­mony;

b.

phys­ic­al re­cords;

c.

in­spec­tion;

d.

ex­pert opin­ion;

e.

writ­ten state­ments;

f.

ques­tion­ing and state­ments of the parties.

² The pro­vi­sions re­lat­ing to mat­ters of chil­dren in fam­ily law pro­ceed­ings are re­served.

Any per­son who is not a party may testi­fy on mat­ters that he or she has dir­ectly wit­nessed.

¹ Wit­nesses are summoned by the court.

² The court may al­low the parties to bring along wit­nesses without a sum­mons.

³ A wit­ness may be ques­tioned at his or her place of res­id­ence. The parties must be no­ti­fied there­of in ad­vance.

¹ A wit­ness shall be cau­tioned as to the re­quire­ment to tell the truth be­fore be­ing ques­tioned; if at least 14 years of age, the wit­ness shall also be ad­vised of the crim­in­al con­sequences of per­jury (Art. 307 SCC⁷²).

² The court shall ques­tion each wit­ness in­di­vidu­ally with no oth­er wit­nesses present; the fore­go­ing is sub­ject to the pro­vi­sions on con­front­a­tion.

³ The wit­ness must testi­fy without notes; the court may au­thor­ise the use of writ­ten doc­u­ments.

⁴ The court shall ex­clude wit­nesses from the re­mainder of the hear­ing as long as they have not been re­leased from be­ing a wit­ness.

The court shall ask wit­nesses:

a.

to state their par­tic­u­lars;

b.

to de­scribe their per­son­al re­la­tion­ship with the parties and oth­er cir­cum­stances that may be rel­ev­ant to the cred­ib­il­ity of their testi­mony;

c.

to state the facts of the case as they have ob­served them.

The parties may re­quest that ad­di­tion­al ques­tions be put to the wit­ness, or, with the con­sent of the court, they may them­selves ask such ques­tions.

Wit­nesses may be con­fron­ted with each oth­er or with the parties.

If a wit­ness has spe­cial ex­pert­ise, the court may also ask him or her ques­tions about his or her as­sess­ment of the facts of the case.

¹ The es­sen­tial de­tails of the state­ment shall be placed on re­cord, which is then read out or giv­en to the wit­ness to read and there­after signed by the wit­ness. Ad­di­tion­al ques­tions re­ques­ted by the parties that have been re­jec­ted are also re­cor­ded if a party so re­quests.⁷³

² In ad­di­tion, the state­ment may be re­cor­ded on tape, by video or by oth­er ap­pro­pri­ate tech­nic­al aids.

³ If state­ments are re­cor­ded dur­ing a hear­ing us­ing tech­nic­al aids in ac­cord­ance with 2, the court or the ex­amin­ing mem­ber of the court may dis­pense with read­ing the tran­script back to the per­son ex­amined and or giv­ing that per­son the tran­script to read and sign. The re­cord­ings are placed in the case files to­geth­er with the tran­script.⁷⁴

The fol­low­ing are con­sidered to be phys­ic­al re­cords: pa­pers, draw­ings, plans, pho­tos, films, au­dio re­cord­ings, elec­tron­ic files and the like that are suit­able to prove leg­ally sig­ni­fic­ant facts.

The party in­vok­ing a phys­ic­al re­cord must prove its au­then­ti­city if this is dis­puted by the op­pos­ing party; the op­pos­ing party must give ad­equate grounds for dis­put­ing au­then­ti­city.

Pub­lic re­gisters and of­fi­cial re­cords are con­clus­ive evid­ence of the facts stated therein, un­less their con­tent is proven to be in­cor­rect

¹ A copy of the phys­ic­al re­cord may be pro­duced in place of the ori­gin­al. The court or a party may re­quest that the ori­gin­al or an of­fi­cially cer­ti­fied copy be pro­duced if there is jus­ti­fied doubt as to the au­then­ti­city of the phys­ic­al re­cord.

² If parts of a lengthy phys­ic­al re­cord are cited as evid­ence, those parts must be high­lighted.

¹ At the re­quest of a party or ex of­fi­cio, the court may con­duct an in­spec­tion in or­der to see the facts for it­self or for a bet­ter un­der­stand­ing of the case.

² The court may sum­mon wit­nesses or ex­perts to the in­spec­tion.

³ The ob­ject of the in­spec­tion must be brought to court if it can be moved without dif­fi­culty.

A re­cord must be kept of the in­spec­tion. If ap­pro­pri­ate, the re­cord shall in­clude plans, draw­ings, pho­to­graphs and oth­er tech­nic­al re­sources.

¹ At the re­quest of a party or ex of­fi­cio, the court may ob­tain an opin­ion from one or more ex­perts. The court must hear the parties first.

² The same grounds ap­ply for the re­cus­al of ex­perts as ap­ply to judges and ju­di­cial of­ficers.

³ If the court re­lies on the spe­cial ex­pert­ise of one of its mem­bers, it must in­form the parties so that they may com­ment.

¹ The ex­pert must tell the truth and must sub­mit his or her opin­ion with­in the set dead­line.

² The court shall cau­tion the ex­pert as to the crim­in­al con­sequences of per­jury by an ex­pert wit­ness in terms of Art­icle 307 SCC⁷⁵ and of a breach of of­fi­cial secrecy un­der Art­icle 320 SCC as well as the con­sequences of de­fault or fail­ure to per­form the man­date ad­equately.

³ The ex­pert is en­titled to a fee. The de­cision of the court on the fee may be chal­lenged by way of ob­jec­tion.

¹ The court shall in­struct the ex­pert and shall sub­mit the rel­ev­ant ques­tions to him, either in writ­ing or or­ally at the hear­ing.

² The court shall give the parties the op­por­tun­ity to re­spond to the ques­tions to be put to the ex­pert and to pro­pose that they be mod­i­fied or sup­ple­men­ted.

³ The court shall provide the ex­pert with the ne­ces­sary files and set a dead­line for sub­mit­ting the opin­ion.

¹ With the au­thor­isa­tion of the court, the ex­pert may carry out his or her own en­quir­ies. He or she must dis­close the res­ults of the en­quir­ies in the opin­ion.

² At the re­quest of a party or ex of­fi­cio, the court may or­der that the ex­pert's en­quir­ies be car­ried out again in ac­cord­ance with the rules on tak­ing evid­ence.

¹ The court may or­der that the ex­pert sub­mits his or her opin­ion in writ­ing or presents it or­ally. It may also sum­mon the ex­pert to the hear­ing in or­der to ex­plain his or her writ­ten opin­ion.

² An or­ally presen­ted opin­ion must be placed on re­cord in ac­cord­ance with Art­icle 176.

³ If two or more ex­perts have been man­dated, each one shall sub­mit a sep­ar­ate opin­ion, un­less the court de­cides oth­er­wise.

⁴ The court shall give the parties the op­por­tun­ity to ask for ex­plan­a­tions or to put ad­di­tion­al ques­tions.

¹ If the ex­pert does not sub­mit his or her opin­ion on time, the court may re­voke the man­date and in­struct an­oth­er ex­pert.

² If an opin­ion is in­com­plete, un­clear or in­suf­fi­ciently reasoned, the court may at the re­quest of a party or ex of­fi­cio or­der that the opin­ion be com­pleted or ex­plained, or it may call in an­oth­er ex­pert.

¹ The parties may agree to ob­tain an ar­bit­rat­or's opin­ion on the mat­ters in dis­pute.

² Art­icle 17 para­graph 2 gov­erns the form of the agree­ment.

³ The court is bound by the ar­bit­rat­or's opin­ion with re­gard to the facts es­tab­lished therein provided:

a.

the parties are free to dis­pose of the leg­al re­la­tion­ship;

b.

no grounds for re­cus­al ex­is­ted against the ex­pert ar­bit­rat­or; and

c.

the opin­ion has been stated in an im­par­tial man­ner and is not mani­festly in­cor­rect.

¹ The court may ob­tain in­form­a­tion in writ­ing from of­fi­cial au­thor­it­ies.

² It may ob­tain in­form­a­tion in writ­ing from private per­sons if the form­al ex­am­in­a­tion of a wit­ness seems un­ne­ces­sary.

¹ The court may ques­tion one or both parties on the rel­ev­ant facts of the case.

² Be­fore the ex­am­in­a­tion, the parties shall be cau­tioned that they must tell the truth and ad­vised that if they wil­fully lie, they may be li­able to a dis­cip­lin­ary fine not ex­ceed­ing 2,000 francs or, in the event of re­peated ly­ing, not ex­ceed­ing 5,000 francs.

¹ The court may ex of­fi­cio or­der one or both parties to give evid­ence sub­ject to crim­in­al pen­al­ties for fail­ure to do so.

² Be­fore giv­ing evid­ence, the parties shall be cau­tioned that they must tell the truth and ad­vised of the crim­in­al con­sequences of per­jury (Art. 306 SCC⁷⁶).

Art­icle 176 ap­plies by ana­logy to the re­cord of the ex­am­in­a­tion of the parties and the evid­ence giv­en.

¹ Courts are ob­liged to provide mu­tu­al as­sist­ance.

² They shall cor­res­pond dir­ectly with each oth­er⁷⁷.

Any court may carry out ne­ces­sary pro­ced­ur­al acts dir­ectly in an­oth­er can­ton; in par­tic­u­lar, it may hold hear­ings and take evid­ence there.

¹ The court may re­quest mu­tu­al as­sist­ance. The re­quest may be made in the of­fi­cial lan­guage of either the re­quest­ing or the re­ques­ted court.

² The re­ques­ted court shall no­ti­fy the re­quest­ing court and the parties of the place and time of the pro­ced­ur­al act.

³ The re­ques­ted court may de­mand the re­im­burse­ment of its out­lays.

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

Con­cili­ation pro­ceed­ings are not held:

a.

in sum­mary pro­ceed­ings;

a^bis.⁷⁸

in pro­ceed­ings on vi­ol­ence, threats or har­ass­ment pur­su­ant to Art­icle 28b CC⁷⁹ or on elec­tron­ic mon­it­or­ing pur­su­ant to Art­icle 28c CC;

b.

in pro­ceed­ings on civil status;

b^bis.⁸⁰

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. 298band 298dCC⁸¹);

c.

in di­vorce pro­ceed­ings;

d.⁸²

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

e.

for the fol­low­ing ac­tions arising from the DEBA⁸³:

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 1995⁸⁴.

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 1995⁸⁵, 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 1995⁸⁶;

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.

¹ If all the parties so re­quest, the con­cili­ation pro­ceed­ings shall be re­placed by me­di­ation.

² The re­quest must be made in the ap­plic­a­tion for con­cili­ation or at the con­cili­ation hear­ing.

³ The con­cili­ation au­thor­ity shall grant au­thor­isa­tion to pro­ceed if it is no­ti­fied by one of the parties that me­di­ation has failed.

¹ The court may re­com­mend me­di­ation to the parties at any time.

² The parties may at any time make a joint re­quest for me­di­ation.

³ The court pro­ceed­ings re­main sus­pen­ded un­til the re­quest is with­drawn by one of the parties or un­til the court is no­ti­fied of the end of the me­di­ation.

The parties are re­spons­ible for or­gan­ising and con­duct­ing the me­di­ation.

¹ Me­di­ation pro­ceed­ings are con­fid­en­tial and kept sep­ar­ate from the con­cili­ation au­thor­ity and the court.

² The state­ments of the parties may not be used in court pro­ceed­ings.

The parties may jointly re­quest that the agree­ment reached through me­di­ation be ap­proved. An ap­proved agree­ment has the same ef­fect as a leg­ally bind­ing de­cision.

¹ The parties shall bear the costs of me­di­ation.

² In mat­ters of child law, the parties are en­titled to cost-free me­di­ation if:⁸⁷

a.

they do not have the ne­ces­sary fin­an­cial re­sources; and

b.

the court re­com­mends me­di­ation.

³ Can­ton­al law may provide for fur­ther ex­emp­tions from costs.

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.⁸⁸

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.⁸⁹

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 2005⁹⁰ 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.

¹ Sim­pli­fied pro­ceed­ings ap­ply in fin­an­cial dis­putes with a value in dis­pute not ex­ceed­ing 30,000 francs.

² They ap­ply re­gard­less of the amount in dis­pute in the case of:⁹¹

a.

dis­putes un­der the Gender Equal­ity Act of 24 March 1995⁹²;

b.⁹³

dis­putes con­cern­ing vi­ol­ence, threats or stalk­ing pur­su­ant to Art­icle 28b CC⁹⁴ or con­cern­ing elec­tron­ic mon­it­or­ing pur­su­ant to Art­icle 28c CC;

c.

dis­putes con­cern­ing 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;

d.⁹⁵

dis­putes con­cern­ing the right of ac­cess to per­son­al data un­der Art­icle 25 FADP⁹⁶;

e.

dis­putes con­cern­ing the Par­ti­cip­a­tion Act of 17 Decem­ber 1993⁹⁷;

f.

dis­putes con­cern­ing in­sur­ance sup­ple­ment­ary to the so­cial health in­sur­ance un­der the Fed­er­al Act of 18 March 1994⁹⁸ on Health In­sur­ance.

³ The sim­pli­fied pro­ceed­ings do not ap­ply to dis­putes be­fore the court of sole can­ton­al in­stance in ac­cord­ance with Art­icles 5 and 8 and be­fore the Com­mer­cial Court in ac­cord­ance with Art­icle 6.

¹ The state­ment of claim may be filed in the forms provided for by Art­icle 130 or or­ally on re­cord be­fore the court. It shall con­tain:

a.

the des­ig­na­tion of the parties;

b.

the pray­ers for re­lief;

c.

a de­scrip­tion of the mat­ter in dis­pute;

d.

a state­ment of the value in dis­pute, if ne­ces­sary;

e.

the date and sig­na­ture.

² A state­ment of the grounds for the claim is not ne­ces­sary.

³ The fol­low­ing must be filed to­geth­er with the state­ment of claim:

a.

a power of at­tor­ney in case of rep­res­ent­a­tion;

b.

the au­thor­isa­tion to pro­ceed or the de­clar­a­tion that con­cili­ation has been waived;

c.

the avail­able phys­ic­al re­cords.

¹ If no grounds are stated for the ac­tion, the court shall serve the de­fend­ant with the state­ment of claim and sum­mon the parties to a hear­ing.

² If the grounds for the ac­tion are stated, the court shall first set a dead­line for the de­fend­ant to file a writ­ten re­sponse to the claim.

¹ The court shall make the re­quired pro­ced­ur­al rul­ings so that if pos­sible the mat­ter may be con­cluded at the first hear­ing.

² If the cir­cum­stances so re­quire, the court may or­der an ex­change of writ­ten sub­mis­sions and hold in­struc­tion hear­ings.

¹ By ask­ing the ap­pro­pri­ate ques­tions, the court shall cause the parties to com­plete in­ad­equate sub­mis­sions and to des­ig­nate the evid­ence.

² In the fol­low­ing cases, the court shall es­tab­lish the facts ex of­fi­cio:

a.

in mat­ters un­der Art­icle 243 para­graph 2;

b.

if the value in dis­pute does not ex­ceed 30,000 francs:

1.

in oth­er dis­putes con­cern­ing the ten­ancy and lease of res­id­en­tial and busi­ness prop­erty or the lease of ag­ri­cul­tur­al prop­erty,

2.

in oth­er em­ploy­ment law dis­putes.

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.⁹⁹

Law of per­sons:

1.

fix­ing a time lim­it for leg­al trans­ac­tions by minors or per­sons sub­ject to a gen­er­al deputy­ship (Art. 19a CC¹⁰⁰),

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.¹⁰¹

...

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),

9.¹⁰²

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

10.¹⁰³

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 CO¹⁰⁴),

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. 1¹⁰⁵ 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:¹⁰⁶

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),

6.¹⁰⁷

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),

7.¹⁰⁸

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

8.¹⁰⁹

a spe­cial in­vest­ig­a­tion (Art. 697c–697h^bis CO),

9.¹¹⁰

con­ven­ing a gen­er­al meet­ing, put­ting an item on the agenda, tabling mo­tions with short ex­plan­a­tions in the in­vit­a­tion to the gen­er­al meet­ing (Art. 699 para. 5, 699b para. 4, 805 para. 5 nos 2 and 3 and 881 para. 3 CO),

10.¹¹¹ 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),

11.¹¹² ap­point­ment and re­mov­al of the aud­it­ors (Art. 731b,819 and 908 CO),

12.

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

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

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

15.¹¹⁵ or­der­ing the dis­sol­u­tion of the com­pany and its li­quid­a­tion in ac­cord­ance with the pro­vi­sions on bank­ruptcy (Art. 731b, 819 und 908 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 DEBA¹¹⁶) 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 PILA¹¹⁸);

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.

¹ The court shall or­der the in­ter­im meas­ures re­quired provided the ap­plic­ant shows cred­ibly that:

a.

a right to which he or she is en­titled has been vi­ol­ated or a vi­ol­a­tion is an­ti­cip­ated; and

b.

the vi­ol­a­tion threatens to cause not eas­ily re­par­able harm to the ap­plic­ant.

² The court may re­frain from or­der­ing in­ter­im meas­ures if the op­pos­ing party provides ap­pro­pri­ate se­cur­ity.

The court may or­der any in­ter­im meas­ure suit­able to pre­vent the im­min­ent harm, in par­tic­u­lar:

a.

an in­junc­tion;

b.

an or­der to rem­edy an un­law­ful situ­ation;

c.

an or­der to a re­gister au­thor­ity or to a third party;

d.

per­form­ance in kind;

e.

the pay­ment of a sum of money in the cases provided by the law.

If the prin­cip­al ac­tion is not yet pending, the court shall set a dead­line with­in which the ap­plic­ant must file his or her ac­tion, sub­ject to the ordered meas­ure be­com­ing auto­mat­ic­ally in­ef­fect­ive in the event of de­fault.

¹ The court may make the in­ter­im meas­ure con­di­tion­al on the pay­ment of se­cur­ity by the ap­plic­ant if it is an­ti­cip­ated that the meas­ures may cause loss or dam­age to the op­pos­ing party.

² The ap­plic­ant is li­able for any loss or dam­age caused by un­jus­ti­fied in­ter­im meas­ures. If the ap­plic­ant proves, however, that he or she ap­plied for the meas­ures in good faith, the court may re­duce the dam­ages or en­tirely re­lease the ap­plic­ant from li­ab­il­ity.

³ The se­cur­ity must be re­leased once it is es­tab­lished that no ac­tion for dam­ages will be filed; in case of un­cer­tainty, the court shall set a dead­line for fil­ing the ac­tion.

¹ In cases of spe­cial ur­gency, and in par­tic­u­lar where there is a risk that the en­force­ment of the meas­ure will be frus­trated, the court may or­der the in­ter­im meas­ure im­me­di­ately and without hear­ing the op­pos­ing party.

² At the same time, the court shall sum­mon the parties to a hear­ing, which must take place im­me­di­ately, or set a dead­line for the op­pos­ing party to com­ment in writ­ing. Hav­ing heard the op­pos­ing party, the court shall de­cide on the ap­plic­a­tion im­me­di­ately.

³ Be­fore or­der­ing in­ter­im meas­ures, the court may ex of­fi­cio or­der the ap­plic­ant to provide se­cur­ity.

The court may or­der in­ter­im meas­ures against peri­od­ic­ally pub­lished me­dia only if:

a.

the im­min­ent vi­ol­a­tion of rights may cause the ap­plic­ant a par­tic­u­larly ser­i­ous dis­ad­vant­age;

b.

the vi­ol­a­tion is ob­vi­ously not jus­ti­fied; and

c.

the meas­ure does not seem dis­pro­por­tion­ate.

The court that or­ders the in­ter­im meas­ure shall also take the re­quired en­force­ment meas­ures.

¹ The in­ter­im meas­ures may be mod­i­fied or re­voked if the cir­cum­stances have changed or if the meas­ures have proven un­jus­ti­fied.

² The meas­ures be­come auto­mat­ic­ally in­ef­fect­ive when the de­cision on the mer­its comes in­to force. The court may or­der their con­tinu­ation if it serves the en­force­ment of the de­cision or if the law so provides.

The fol­low­ing pro­vi­sions are re­served:

a.

the pro­vi­sions of the DEBA¹¹⁹ on pro­tect­ive meas­ures when en­for­cing mon­et­ary claims;

b.

the pro­vi­sions of the CC¹²⁰ on pro­tect­ive meas­ures in suc­ces­sion;

c.

the pro­vi­sions of the Pat­ents Act of 25 June 1954¹²¹ on the ac­tion re­lat­ing to the grant­ing of a li­cence.

¹ Any per­son who has reas­on to be­lieve that an ex-parte in­ter­im meas­ure, an at­tach­ment un­der Art­icles 271–281 DEBA¹²² or any oth­er meas­ure against him or her will be ap­plied for without pri­or hear­ing, may set out his or her po­s­i­tion in ad­vance by fil­ing a pro­tect­ive let­ter.¹²³

² The op­pos­ing party shall be served with the pro­tect­ive let­ter only if he or she ini­ti­ates the rel­ev­ant pro­ceed­ings.

³ The pro­tect­ive let­ter be­comes in­ef­fect­ive six months after it is filed.

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 CC¹²⁴;

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.

Di­vorce pro­ceed­ings are ini­ti­ated by sub­mit­ting a joint re­quest for di­vorce or by fil­ing an ac­tion for di­vorce.

Each spouse has the right to sus­pend the com­mon house­hold for the dur­a­tion of the di­vorce pro­ceed­ings.

¹ The court shall or­der the ne­ces­sary in­ter­im meas­ures. The pro­vi­sions con­cern­ing meas­ures for pro­tec­tion of the mar­it­al uni­on ap­ply by ana­logy.

² In­ter­im meas­ures ordered by the court for the pro­tec­tion of the mar­it­al uni­on shall be con­tin­ued. The di­vorce court has jur­is­dic­tion to modi­fy or re­voke them.

³ The court may also or­der in­ter­im meas­ures after the dis­sol­u­tion of the mar­riage if pro­ceed­ings re­lat­ing to the ef­fects of the di­vorce con­tin­ue.

¹ The prin­ciple of pro­duc­tion of evid­ence ap­plies in pro­ceed­ings con­cern­ing the dis­sol­u­tion of the mar­it­al prop­erty re­gime and post-mar­it­al main­ten­ance.

² If the court es­tab­lishes that phys­ic­al re­cords re­quired to de­cide the fin­an­cial con­sequences of the di­vorce are miss­ing, it shall or­der the parties to pro­duce such doc­u­ments.

³ The court shall oth­er­wise es­tab­lish the facts ex of­fi­cio.

The parties must ap­pear in per­son at the hear­ing un­less the court ex­empts them for reas­ons of ill­ness or age or for oth­er good cause.

¹ The court shall ap­prove the agree­ment on the ef­fects of the di­vorce if it is per­suaded that the spouses have con­cluded the agree­ment of their own vo­li­tion and after care­ful re­flec­tion, and that the agree­ment is clear, com­plete and not mani­festly in­equit­able; the pro­vi­sions on oc­cu­pa­tion­al pen­sions are re­served.

² The agree­ment is val­id only when it has been ap­proved by the court. It must be in­cluded in the con­clu­sions to the de­cision.

¹ The court shall ap­prove an agree­ment on the equit­able di­vi­sion of claims to the oc­cu­pa­tion­al pen­sions provided:¹²⁵

a.¹²⁶

the spouses have agreed on the equit­able di­vi­sion and its mod­al­it­ies;

b.¹²⁷

the spouses provide con­firm­a­tion from the oc­cu­pa­tion­al pen­sion schemes con­cerned on the prac­tic­ab­il­ity of the ar­range­ment and of the amount of the en­ti­tle­ments or pen­sions; and

c.

the court is per­suaded that the agree­ment con­forms to the law.

² The court shall in­form the pen­sion schemes con­cerned about the rel­ev­ant parts of the fi­nal de­cision, in­clud­ing the de­tails re­quired in or­der to trans­fer of the agreed amounts. The de­cision is bind­ing on the pen­sion schemes.

³ If the spouses agree not to di­vide their pen­sions equally or if they de­cline to di­vide their pen­sions, the court shall ex­am­ine ex of­fi­cio wheth­er ap­pro­pri­ate fin­an­cial se­cur­ity for age or in­valid­ity re­mains guar­an­teed.¹²⁸

¹ In the ab­sence of an agree­ment, and if the rel­ev­ant en­ti­tle­ments and pen­sions have been de­term­ined, the court shall de­cide on the ap­por­tion­ment of the shares ac­cord­ing to the pro­vi­sions of the CC¹³⁰ and the Ves­ted Be­ne­fits Act of 17 Decem­ber 1993¹³¹ (VBA) (Art. 122 and 123 CC in con­junc­tion with Art. 22–22f VBA), de­term­ine the amount to be trans­ferred and set a dead­line for the pen­sion funds con­cerned to con­firm the prac­tic­ab­il­ity of the planned ar­range­ment.¹³²

² Art­icle 280 para­graph 2 ap­plies by ana­logy.

³ In oth­er cases in which no agree­ment is reached, after the fi­nal de­cision on the ap­por­tion­ment of the shares, the court shall refer the mat­ter to the com­pet­ent court un­der the VBA, ad­vising it in par­tic­u­lar of:¹³³

a.

the de­cision on the ap­por­tion­ment of the shares;

b.

the date of mar­riage and the date of di­vorce;

c.¹³⁴

the pen­sion funds against which the spouses are likely to have en­ti­tle­ments, and the amount of these en­ti­tle­ments;

d.¹³⁵

the oc­cu­pa­tion­al pen­sion funds that pay the spouses pen­sions, the amount of those pen­sions and the shares of the pen­sions paid.

¹ The agree­ment or de­cision fix­ing the main­ten­ance pay­ments must in­dic­ate:

a.

the por­tions of the in­come and the as­sets of each spouse that have been taken in­to ac­count;

b.

the amount al­loc­ated to the spouse and to each child;

c.

the amount ne­ces­sary to as­sure the prop­er main­ten­ance of the en­titled spouse, if a sub­sequent in­crease in the pen­sion is re­served;

d.

wheth­er and to what ex­tent the pen­sion will be ad­jus­ted to changes in liv­ing costs.

² If the main­ten­ance pay­ment for the spouse is chal­lenged, the ap­pel­late court may also re­as­sess the main­ten­ance pay­ments for the chil­dren, even if they are not chal­lenged.

¹ The court rules on the ef­fects of the di­vorce in the di­vorce judg­ment.

² Where there is good cause, the di­vi­sion of the mar­it­al prop­erty may be re­ferred to sep­ar­ate pro­ceed­ings.

³ The equit­able di­vi­sion of claims to oc­cu­pa­tion­al pen­sion as­sets may be re­ferred in their en­tirety to sep­ar­ate pro­ceed­ings if claims to pen­sion as­sets abroad are in­volved and a de­cision can be ob­tained in the state con­cerned on their equit­able di­vi­sion. The court may sus­pend the sep­ar­ate pro­ceed­ings un­til the for­eign de­cision has been taken; it may already de­term­ine the shares on di­vi­sion.¹³⁶

¹ The con­di­tions and the ma­ter­i­al jur­is­dic­tion for ad­just­ing a de­cision are gov­erned by Art­icles 124epara­graph 2, 129 and 134 CC¹³⁷.¹³⁸

² Non-con­ten­tious modi­fic­a­tions may be agreed in a simple writ­ten agree­ment, sub­ject to the pro­vi­sions of the CC con­cern­ing mat­ters re­lat­ing to chil­dren (Art. 134 para. 3 CC).

³ The pro­vi­sions on the di­vorce ac­tion ap­ply by ana­logy to the pro­ceed­ings for con­ten­tious modi­fic­a­tions.

The joint sub­mis­sion of the spouses con­tains:

a.

the names and ad­dresses of the spouses and de­tails of their rep­res­ent­at­ives, if any;

b.

the joint di­vorce re­quest;

c.

the com­pre­hens­ive agree­ment on the ef­fects of the di­vorce;

d.

the joint ap­plic­a­tions with re­gard to the chil­dren;

e.

the ne­ces­sary doc­u­ments;

f.

the date and sig­na­tures.

¹ In their sub­mis­sion, the spouses must ap­ply for the court to rule on the ef­fects of di­vorce on which they have not reached an agree­ment.

² Each spouse may sub­mit his or her jus­ti­fied ap­plic­a­tion on the ef­fects of the di­vorce that are not part of the agree­ment.

³ Oth­er­wise Art­icle 285 ap­plies by ana­logy.

If the sub­mis­sion is com­plete, the court shall sum­mon the parties to a hear­ing. The con­duct of the hear­ing is gov­erned by the pro­vi­sions of the CC¹⁴⁰.

¹ If the con­di­tions for a di­vorce at joint re­quest are ful­filled, the court shall de­cree the di­vorce and ap­prove the agree­ment.

² If the ef­fects of the di­vorce re­main dis­puted, the pro­ceed­ings shall be con­tin­ued with re­gard to these ef­fects un­der ad­versari­al pro­ced­ure.¹⁴¹ The court may as­sign the roles of plaintiff and de­fend­ant.

³ If the re­quire­ments for di­vorce at joint re­quest are not met, the court shall re­ject the joint re­quest for di­vorce and at the same time set a dead­line to each spouse for the fil­ing of a di­vorce ac­tion.¹⁴² The pro­ceed­ings re­main pending dur­ing this peri­od and any in­ter­im meas­ures con­tin­ue to ap­ply.

The di­vorce may only be con­tested by ap­peal on the grounds of lack of in­tent.

An ac­tion for di­vorce may be filed without a writ­ten state­ment of the grounds. It shall con­tain:

a.

the names and ad­dresses of the spouses and the des­ig­na­tion of their rep­res­ent­at­ives, if any;

b.

the pray­er for re­lief re­quest­ing the di­vorce and an in­dic­a­tion of the grounds (Art. 114 or 115 CC¹⁴³);

c.

the pray­ers for re­lief con­cern­ing the fin­an­cial ef­fects of the di­vorce;

d.

the pray­ers for re­lief con­cern­ing the chil­dren;

e.

the ne­ces­sary doc­u­ments;

f.

the date and sig­na­tures.

¹ The court shall sum­mon the parties to a hear­ing and es­tab­lish wheth­er there are grounds for di­vorce.

² If grounds for di­vorce are es­tab­lished, the court shall at­tempt to se­cure an agree­ment between the spouses with re­gard to the ef­fects of the di­vorce.

³ If grounds for di­vorce are not es­tab­lished or if an agree­ment can­not be reached, the court shall set a dead­line for the plaintiff to sub­mit a writ­ten state­ment of grounds for the ac­tion. In the event of de­fault, the pro­ceed­ings shall be dis­missed as ground­less.

¹ The pro­ceed­ings shall con­tin­ue ac­cord­ing to the pro­vi­sions on di­vorce at joint re­quest if the spouses:

a.

have been sep­ar­ated for less than two years at the time the case be­comes pending; and

b.

agree to the di­vorce.

² If the grounds for di­vorce claimed are es­tab­lished, no change to pro­ceed­ings for di­vorce at joint re­quest is made.

A di­vorce ac­tion may be changed to a sep­ar­a­tion ac­tion at any time pri­or to the court be­gin­ning its de­lib­er­a­tions on the de­cision.

¹ The pro­ced­ure for ac­tions for an­nul­ment and for sep­ar­a­tion is gov­erned by ana­logy by the pro­vi­sions on ac­tions for di­vorce.

² An ac­tion for sep­ar­a­tion may be trans­formed in­to an ac­tion for di­vorce at any time pri­or to the court be­gin­ning de­lib­er­a­tions on the de­cision.