The revision of the Swiss Civil Procedure Code (CPC) aims to close existing gaps and optimise its application by courts and parties. When reviewing the practicability of the CPC, it was found that it lacked provisions on the dealing with submissions, and the meeting of deadlines, when submissions are received by a court that has no jurisdiction. The legislator has addressed this in the revision and introduced a duty on the court mistakenly addressed to forward the case to the competent court (art. 143 para. 1bis nCPC). This step is intended to increase legal certainty and efficiency in the proceedings, ensuring that parties do not suffer any disadvantages in the event of submission errors.

1. The Duty to Forward

With the introduction of the forwarding obligation, submissions mistakenly filed with an incompetent court in Switzerland are nevertheless deemed to have been filed in due time, provided that they were submitted within the time limit. This new regulation expands on the previous case law on appeals inadvertently filed with the lower court (BGE 140 III 636) and establishes an obligation for the court without jurisdiction to automatically forward the documents. This applies not only to appeal proceedings, but to all types of proceedings and submissions that are mistakenly submitted to the wrong court or to a conciliation authority that does not have competence.

2. Ambiguities and Open Questions

2.1 What does "mistakenly" mean?

A central point of the new regulation is the definition of the term "mistakenly". The question arises as to whether this also includes cases in which the party deliberately files with a court without jurisdiction, for example due to ignorance of the correct jurisdiction, a misinterpretation of the procedural rules, or simply to gain time. It needs to be clarified by the courts whether such actions are still considered "mistakenly", or whether only genuine mistakes are covered.

2.2 Granting the right to be heard before forwarding

The question arises as to whether parties must be granted the right to be heard before the forwarding is ordered. This is particularly relevant in the case of non-mandatory jurisdictions where a different approach could be justified because the parties have the opportunity to agree on jurisdiction. It will have to be clarified in which situations granting the right to be heard is mandatory.

2.3 Decision of the court on forwarding

According to prevailing doctrine, it is to be assumed that a decision of non-admission will be issued by the court lacking jurisdiction, together with an order for forwarding.

2.4 Repetition of procedural acts by the second court

Another relevant aspect is whether the second court to which the submission is forwarded can demand the repetition of certain procedural acts if, for example, the process is already at an advanced stage.. This question touches on the principle of immediacy, which requires the court to hear the case directly and in person. In our view, such repetition must be possible in order to ensure procedural coherence and avoid substantive compromises in the evaluation of the case.

3. Conclusion

The introduction of the forwarding obligation improves procedural certainty and ensures that parties do not suffer a loss of rights if a submission is inadvertently misaddressed. Nevertheless, some questions remain unsolved, which will require clarification through case law in order to create legal certainty and ensure the smooth application of the new rule. The VISCHER dispute resolution team is always available to advise or represent you in the context of litigation.

Here you will find the overview of the CPC blog series.

Author: Quirin Meier