NDJC: Judgments in Clear Cases
Kicking off this new format NDJC (i.e., no deals, just cases), where I will inform from time to time about interesting cases in which I was personally involved, I would like to present a few thoughts on a recently concluded commercial litigation in which I represented a foreign bank (i.e., not domiciled in Switzerland) that had a claim against a natural person based on a typical on first demand bank guarantee.
The bank decided to file a civil action against the debtor not in ordinary proceedings, but in summary proceedings pursuant to Art. 257 of the Swiss Civil Procedure Code (CPC). According to this provision, the court can issue a judgment in summary proceedings, if and when (i) the facts are undisputed or can be proven immediately as well as (ii) the legal situation is clear.
The important advantage of summary proceedings pursuant to Art. 257 of the CPC are the much lower costs than the costs to be incurred in ordinary proceedings. In the case at issue, the bank's claim exceeded EUR 10m, and with such a high value in dispute, the difference in terms of costs, namely related to the court fee, can be very substantial.
Although judgments pursuant to Art. 257 of the CPC are issued in summary proceedings, they are fully valid judgments that are not less enforceable than judgments in ordinary proceedings.
The vast majority of cases decided in summary proceedings pursuant to Art. 257 of the CPC are tenant expulsion cases. However, conceptually, any claim may be litigated in such summary proceedings, not only tenant expulsion claims. The case at issue demonstrates that if the facts supporting a claim can be proved on the basis of documents as well as if the legal situation is clear, other cases than tenant expulsion actions can be successfully litigated pursuant to Art. 257 of the CPC.
PHH, Zurich, 30 May 2018 (www.haberbeck.ch)
The information contained in this post is for general informational purposes only and is not intended to constitute legal advice. Readers of this post should not take any actions or decisions without seeking specific legal advice.