Switzerland: Conciliation and Mediation under the New Provisions of the Code of Civil Procedure - WAMR 2015 Vol. 9, No. 1

Author(s): 

Andrea E. Rusca

Page Count: 

14 pages

Media Description: 

1 PDF Download

Published: 

July, 2015

Jurisdictions: 

Switzerland,

International

Practice Areas: 

Composition of Arbitral Tribunal,

Code of Ethics for Arbitrators,

Procedural Orders,

Swiss Chambers

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Description: 

Originally From World Arbitration and Mediation Review (WAMR)

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I. INTRODUCTION

 

In Switzerland, although most of the substantive laws have

been implemented at the federal level, such as the 1907 Swiss

Civil Code,1 the 1911 Swiss Code of Obligations,2 and the 1937

Swiss Criminal Code,3 each Canton has retained the privilege of

legislating on civil and criminal procedural rules. Each of these

cantonal sets of procedural rules has been applied by cantonal

tribunals and superior cantonal courts, whose decisions remain

under the final supervision of the Swiss Federal Tribunal, the

Supreme Court.

 

 

Hence, for many decades, Switzerland, a small country with a

population of less than eight million in 2012, had up to 26

different codes of procedures both in civil and criminal matters

and 26 separate judicial systems.

 

 

For lawyers, it was extremely difficult to move from the

judicial system and procedural legal systems of one Canton to

another. This difficulty was enhanced by linguistic obstacles in a

country having four official languages – German, French, Italian,

and Romansh – and with laws, regulations, and court decisions

litigated and written, depending on the seat of the first court, in

German, French, or Italian.

 

 

However, with the entry into force on January 1, 2011 of the

Unified Swiss Code of Civil Procedure (“SCCP”),4 the cross-cantonal

exercise of the legal profession has been slightly simplified.

 

 

In addition to this simplification, the SCCP also provides for a

new approach to the conciliation and mediation processes.5

 

 

By comparison, in 1993, when I was doing the two-year

trainee lawyer period at the Geneva Bar and the “conciliation”

process was governed by the old Geneva Code of Civil Procedure,

the “conciliation” process was a mere formality in which the
physical presence of the parties was not even requested.