Civil Justice in Crisis: Comparative Perspectives of Civil Procedure

By Adrian A. S. Zuckerman; Sergio Chiarloni et al. | Go to book overview

15
Swiss Civil Justice: With an Emphasis on the Laws of the Canton of Zurich

Isaak Meier


1. A BRIEF DESCRIPTION OF SWISS PROCEDURAL LAW

1.1. Bodies of law

1.1.1. In general

Since 1912, private law has been federal law (BV=Bundesverfassung/Swiss Constitution, Art. 64 II). Procedural law, however, is still cantonal (state) law. That is to say: Switzerland, a very small country of only 7 million inhabitants, has twenty-six different statutes of procedural law. Furthermore, there is a special federal statute for cases which take place in the Federal Court (Bundesgericht) as a trial court (Bundesgesetz über den Bundeszivilprozess, 4 December 1947). In a few cases, such as actions brought by private persons against the state, the Federal Court acts not as a court of appeal but as a trial court or court of first instance (OG=Bundesgesetz über die Organisation der Bundesrechtspflege, 16 December 1943, Art. 41).

Despite the fact that private law and procedural law are in the hands of different legislators, there is no exact separation of both laws. In the codes and statutes of private laws, such as OR (OR=Code of Obligations/Obligationenrecht), ZGB (ZGB=Code of Civil Law/Zivilgesetzbuch), UWG (UWG=trade law/Gesetz über den unlauteren Wettbewerb), and many others, you can find a vast number of procedural rules concerning such matters as venues, provisional measures, law of evidence (burden of proof etc.), declaratory judgments (Feststellungsklage), and the duty of courts to act ex officio in matters which the parties are not able to dispose of. Furthermore, in the last thirty years, the Federal Court has developed a body of unwritten federal principles of procedural law which have to be adhered to in the cantonal courts. These laws, made by judges, cover amongst other things: more or less all questions concerning res judicata, lis pedens (Rechtshängigkeit), declaratory judgments and provisional measures as long as they are not regulated by a federal statute, joinder of claims, and intervention of a third party in an action.

Since the end of the last century there have been efforts to achieve unification and harmonization of procedural law. Until recently these efforts have never been successful. Now, with a project for a new constitution, there is a realistic hope that -- within the next two or three years -- people and states will give the

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