21 August 2024

What will be the next steps after a first instance court decision is in place?

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  • Legal
  • Litigation / Arbitration

There are time limits for appealing a civil court decision. Whether or not to appeal depends on the likelihood of success, the cost and personal motives. This article provides a rough overview.

  • Martina Aepli

    Legal Partner

  • Stefan Keller

    Senior Legal Associate

Deadline

The appellate remedies can only be filed within the time limits stipulated by law. The deadline for filing an appeal (Berufung) or objection (Beschwerde) is generally 30 days. In case of summary proceedings (summarisches Verfahren), this period is shortened to 10 days, unless otherwise stipulated by law. The deadline begins to run when the judgement is served (and not when the judgement is issued). The following aspects must be taken into account:

  • The deadline to file an appellate remedy begins on the day after the judgement is served, even if it is a weekend or a public holiday.
  • If the deadline falls on a weekend or public holiday, the deadline is extended to the next working day.
  • Court holidays (during Christmas, Easter and summer) interrupt the deadline.
  • The deadline to file an appellate remedy cannot be extended.
  • The deadline is met if the appeal is posted to the Swiss Post on the last day of the deadline (or a valid electronic submission is made, whereby a regular submission by email is not a valid electronic submission).
  • If the judgement of the court of first instance is not issued with the written statement of its reasoning, the first step is to request it from the court within 10 days. The deadline to file an appellate remedy does not start to run until the written statement of grounds is issued.

The exact time limits for appellate remedies are specified by law. The court is obliged to specify the deadline to file an appellate remedy in the judgement. If a decision is not validly appealed within the deadline, the judgement becomes final and, with a few exceptions (see below), cannot be appealed anymore.


Competent instances for the appellate remedies

In civil law, two cantonal instances are usually required before an appeal can be filed with the Federal Supreme Court. Thus, as a rule, a first-instance judgement can be appealed by filing an appeal or objection with the higher cantonal instance (e.g. ZH, ZG, BE: High Court; SZ, SG: Cantonal Court). The judgement of this second instance can then be appealed to the Federal Supreme Court, provided that the relevant requirements are met.

However, there are exceptions to this rule, such as claims before the Commercial Court (if such a court exists at cantonal level, which is currently the case in ZH, AG, SG and BE) and claims with a value of at least CHF 100,000, which may be brought directly before the highest cantonal court if all parties agree. The law also provides for a single cantonal instance for certain disputes requiring specialised expertise (e.g. patent disputes, antitrust disputes or disputes arising from supplementary health insurance). In these cases, there is no possibility of an appellate remedy at cantonal level; the only option is to appeal to the Federal Supreme Court.


Before the judgement becomes final: appellate remedies

An appeal (Berufung) may be filed against all final and intermediate decisions of the court of first instance, as well as against decisions on provisional measures. The grounds for appeal may include misinterpretation of the law and the facts of the case. Under certain (but limited) circumstances, new claims, facts and evidence may be submitted. In the case of pecuniary claims, the amount in dispute must exceed CHF 10’000. An appeal generally has suspensive effect and the decision of the first instance is generally not enforceable (exceptions: precautionary measures and the right of rebuttal (Gegendarstellungsrecht)). At the request of one of the parties, the court may derogate from this rule in justified individual cases. Unless the opposing party files an appeal or a cross-appeal, the appellate court cannot treat the appellant to the detriment of the other party (the so-called prohibition of reformatio in peius). The appellate court usually decides the case on its own and only in exceptional cases does it remit the case to the lower court for reconsideration.

The appellate remedy of (cantonal) objection (Beschwerde) can only be filed against judgements that are not subject to an appeal, as well as other decisions and procedural orders of the first instance. In the case of an objection, the determination of the facts can only be challenged to a limited extent, i.e. if it was made arbitrarily. The main purpose of the objection is to challenge violations of law, which can be examined in full by the appellate court. New claims, new factual allegations and new evidence are not admissible. In general, the objection does not suspend the validity and enforceability of the contested judgement. If the objection is granted, the case may be remitted to the lower court for reconsideration, or the appellate court may decide the case itself.

Decisions of the higher cantonal court may be appealed to the Federal Supreme Court under certain conditions. In the case of pecuniary claims, an objection to the Federal Supreme Court is only admissible if the amount in dispute is at least CHF 30’000. An exception is labour and tenancy law, where an amount in dispute of CHF 15,000 is sufficient. Irrespective of the amount, the Federal Supreme Court considers all cases in which a legal question of fundamental importance is raised. Decisions in debt enforcement and bankruptcy matters may also be appealed to the Federal Supreme Court by means of an objection. In general, the objection does not have suspensive effect, i.e. the judgement becomes enforceable as soon as it is issued by the lower court. The facts of the case cannot be challenged in an objection to the Federal Supreme Court, unless they are manifestly incorrect. The focus is on examining violations of federal law, international law, cantonal constitutional law and intercantonal law.


After the judgement is final: appellate remedies and other legal options

Once the judgement has become final, the only appellate remedy is a revision (Revision). The hurdles for a revision are high. A revision is only permitted in certain cases, e.g. if new facts or evidence relevant to the decision emerge that already existed during the proceedings but could (objectively) not be presented at the time. A revision is also admissible in the case of a criminal offence relevant to the decision (e.g. taking evidence of a forged document). The application for a revision must be submitted within 90 days of becoming aware of the reason for the revision. With the exception of a revision based on a criminal offence, there is also an absolute time limit of 10 years from the date on which the judgement becomes final.

The legal remedy of explanation and rectification do not lead to a change, but only to a clarification of the judgement. A classic example is obvious calculation errors that are corrected by the court ex officio or at the request of a party. The legal remedy of explanation and rectification is not subject to any time limit.

Our team of experienced litigation lawyers will be happy to advise you on the decision in favour of or against an appellate remedy or any other legal option and represent your rights and interests before the appellate court.
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