Dez 02, 2020 | Post by: schamane No Comments

Agreement On Hearing Via Teleconference

Although Circular Sc 1/2020 has been implemented in the last two months during the pandemic and allows for civil conference calls, there are still glaring restrictions on how circulars can actually change civil court proceedings. In particular, Circular Sc 1/2020 did not remove the requirement that a case be registered under the electronic justice system to allow parties to use the system. It also means that not all pending cases, in which the parties had initially opted for the use of the electronic justice system, cannot move to the e-court system. The Bundesgerichtshof notes that the Swiss Code of Civil Procedure presents the main hearing as „an oral hearing in the courtroom in the physical presence of the parties and members of the court“. The Bundesgerichtshof refers to various provisions of the law which state that with regard to the main hearing, „the physical presence of the summoned parties and members of the court in the same place is taken for granted“ (considering. 3.2.) The case at hand is based on a rather unique situation, given that the Decision of the Commercial Court was rendered at a time when a predominant crisis situation in the COVID 19 pandemic has already significantly limited the smooth running of judicial proceedings, but there were no specific provisions to resume the court`s activity. It was not until 16 April 2020 that the Federal Council adopted regulation COVID-19, which explicitly stipulates that court hearings can be conducted by videoconference. Under section 2, paragraph 2 of this regulation, the main hearing by videoconference is permitted if the parties consent or if there are important reasons, particularly urgency. Therefore, if the Commercial Court had to rule on the same issue under the settlement, it would have raised the question of whether important reasons had been given to justify the videoconference hearing against the will of one of the parties. By this decision in principle, the Bundesgerichtshof decided that the Code of Civil Procedure, in the version in force at the time (and still in force today), does not allow a main hearing by videoconference against the will of one of the parties.

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