The Civil Procedure Code of 2011 and its revision of 2025

From twenty-six codes to one

Before 2011 a foreign party litigating in Switzerland had to master the procedural law of the canton concerned. Zurich’s own code of civil procedure, together with its court organisation law, had been admired for its technical quality, yet the fragmentation of procedural law across twenty-six cantons was widely regarded as an obstacle for a country that sought to market itself as a centre of international business. The federal Civil Procedure Code of 19 December 2008, which entered into force on 1 January 2011, ended that fragmentation.¹ It created a uniform procedure while leaving the organisation of courts, the court fees and many details of practice to the cantons. The Zurich GOG, adopted in 2010, was the canton’s response. It maintained the Commercial Court and assigned to it the widest jurisdiction that federal law allowed.

The first decade of the CPC exposed several weaknesses. High cost advances deterred claimants with valid claims but limited liquidity. The absence of any protection for the work of in-house legal departments placed Swiss companies at a disadvantage in cross-border litigation, particularly against opponents from common law jurisdictions where such protection existed. The code knew no electronic hearings, a gap that the pandemic years made painfully clear. International parties, finally, could not litigate in English before Swiss state courts even where every document in the case was written in that language and all counsel worked in it.

The revision in force since 1 January 2025

The Federal Assembly adopted a revision of the CPC on 17 March 2023, and the amended code entered into force on 1 January 2025.² Its central changes can be grouped under four headings: costs, language and international commercial courts, electronic procedure, and privilege.

The first concerns costs. Under the revised Article 98 the court may as a rule require an advance of no more than one half of the expected court costs. Full advances remain permissible in certain proceedings, among them international commercial disputes under Article 6(4)(c), direct actions before the higher cantonal court under Article 8, conciliation proceedings, most summary proceedings and appeal proceedings.³ Article 111 was changed in parallel. Where a party that has paid an advance is ordered to bear the costs, the court costs are set off against the advance. Otherwise the advance is refunded, which means that the risk of recovering court costs from an unsuccessful opponent now lies with the state and no longer with the successful party.⁴ For creditors pursuing claims against insolvent or evasive debtors, a common situation in asset recovery, the change removes a significant deterrent.

The second heading brings together the provisions that matter most for Zurich’s ambitions. The new Article 6(4)(c) allows the cantons to assign to their commercial courts international commercial disputes that satisfy four cumulative conditions: the dispute concerns the business activity of at least one party, the value in dispute is at least CHF 100,000, the parties agree to the jurisdiction of the commercial court, and at least one party has its domicile, habitual residence or registered office abroad at the time of that agreement.⁵ Article 129 was amended at the same time. Proceedings are still conducted in the official language of the canton, but the cantons may now provide that proceedings in international commercial disputes before the commercial court or the ordinary courts may be conducted in English if all parties agree.⁶ Conciliation, which is otherwise mandatory before an action is filed in most Swiss proceedings, became optional for disputes before the commercial courts, and the revision clarified the conditions for counterclaims under a new Article 224(1bis).⁷

The third heading covers electronic procedure. Article 141a now allows the court to conduct procedural acts by means of electronic sound and image transmission, in particular by videoconference, where the parties consent or where the court so orders in the absence of a contrary legal provision. Where a personal appearance is required, the consent of the party concerned is needed.⁸ In international cases, where witnesses and party representatives may sit on several continents, this possibility has quickly become routine. Zurich’s courts prepared for the change through internal guidelines and training during 2024, as the Obergericht noted in its annual report.⁹

The fourth heading is the in-house counsel privilege. Swiss law had long protected the professional secrecy of registered attorneys but not the work of lawyers employed by companies. The revision introduced a right to refuse cooperation for the activities of a company’s internal legal service, subject to three conditions: the company must be entered in the Swiss commercial register or an equivalent foreign register, the legal service must be headed by a person holding a cantonal licence to practise as an attorney or satisfying the professional requirements for doing so, and the activity must be one that would be attributed to the profession of an attorney if carried out by one. The protection extends to documents wherever they are kept.¹⁰ The privilege applies only in civil proceedings, which limits its reach. In criminal and administrative investigations, including proceedings conducted by FINMA or by the Office of the Attorney General, the older rules continue to apply, a point that is taken up in the chapters on economic crime and anti-money-laundering compliance.

Direct access to the higher court

A further instrument that predates the revision deserves mention because international parties sometimes overlook it. Under Article 8 CPC the claimant may, with the consent of the defendant, bring a pecuniary dispute with a value of at least CHF 100,000 directly before the higher cantonal court, which then decides as the sole cantonal instance.¹¹ In Zurich, where the Commercial Court already covers most commercial disputes, the practical significance of this rule lies in disputes outside the commercial court’s competence, for example claims involving private individuals who are not entered in the commercial register. A prorogation agreement that combines a choice of the Zurich courts with the consent to direct access under Article 8 can give such parties a two-instance procedure comparable to that of the Commercial Court.

Notes

1. Swiss Civil Procedure Code of 19 December 2008 (CPC), SR 272, Fedlex, https://www.fedlex.admin.ch/filestore/fedlex.data.admin.ch/eli/cc/2010/262/20250101/en/html/fedlex-data-admin-ch-eli-cc-2010-262-20250101-en-html-1.html (title and date of the Act). ↩
2. Pestalozzi, “Die revidierte ZPO tritt am 1. Januar 2025 in Kraft”, https://pestalozzilaw.com/de/insights/aktuell/legal-insights/die-revidierte-zpo-tritt-am-1-januar-2025-in-kraft/?simple_view=true (adoption by Parliament on 17 March 2023; overview of the main changes, including reduced cost advances, the refund of advances, electronic hearings, international commercial courts, English as language of proceedings and the in-house counsel privilege). ↩
3. CPC, Art. 98 (version of 1 January 2025), Fedlex, loc. cit. ↩
4. CPC, Art. 111 paras. 1 and 2 (version of 1 January 2025), Fedlex, loc. cit. On the policy of shifting the collection risk to the state, see Pestalozzi, “Die revidierte ZPO tritt am 1. Januar 2025 in Kraft”, loc. cit. ↩
5. CPC, Art. 6 para. 4 (version of 1 January 2025), Fedlex, loc. cit. ↩
6. CPC, Art. 129 (version of 1 January 2025), Fedlex, loc. cit. See also Pestalozzi, “Proceedings in English before Swiss State Courts Soon a Reality in Bern and Zurich”, https://pestalozzilaw.com/en/insights/news/legal-insights/proceedings-in-english-before-swiss-state-courts-soon-a-reality-in-bern-and-zurich/. ↩
7. Bär & Karrer, “News Regarding the Jurisdiction of Commercial Courts”, loc. cit. ↩
8. CPC, Art. 141a (version of 1 January 2025), Fedlex, loc. cit. ↩
9. Obergericht des Kantons Zürich, Rechenschaftsbericht 2024, https://www.gerichte-zh.ch/fileadmin/user_upload/Dokumente/obergericht/Rechenschaftsberichte/Rechenschaftsbericht_2024/RB2024.pdf (preparation for the revised CPC with training and new guidelines). ↩
10. Altenburger, “Changes to the Civil Procedure Code as of January 1, 2025”, https://www.altenburger.ch/blog/changes-to-the-civil-procedure-code-as-of-january-1-2025, discussing Art. 167a CPC and the parallel right of parties. The article notes that the privilege is limited to civil proceedings and that the costs of disputes about the right to refuse are borne by the person invoking it. ↩
11. CPC, Art. 8 (version of 1 January 2025), Fedlex, loc. cit. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of September 2025.