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The provisions on jurisdiction in the Swiss Civil Code govern which court has jurisdiction in the respective civil proceedings, i.e. before which court a case can be brought. According to Art. 30 (1) of the Swiss Federal Constitution, every person whose case is judged in court proceedings is entitled to a competent court.
The court’s jurisdiction is one of the procedural requirements under Art. 59(2)(b) of the Code of Civil Procedure. If these requirements are not met, the court does not instigate action. As a result, the court may not hear a certain case or render a decision on it. The determination of whether procedural requirements are met is carried out ex officio (Art. 60 CPC). A litigator in St. Gallen, Zurich or Frauenfeld can further explain the necessary prerequisites for litigation. In order for a court to be considered competent in civil proceedings, the local, subject-matter and the functional jurisdiction must be given.
Local jurisdiction is governed by Articles 9-45 of the Code of Civil Procedure. It is governed by federal law, more precisely by the Swiss Code of Civil Procedure, and not by cantonal law. Local jurisdiction indicates in which canton a lawsuit can be brought forward in court. According to the general clause, the court of the defendant’s domicile or registered office has local jurisdiction. However, this rule is only subsidiary. If the law provides for another place of jurisdiction, then that place is competent.
The parties can agree on a specific place of jurisdiction by a jurisdiction agreement for an existing or for a future legal dispute, focused on the claims arising from a legal relationship. The attorneys at law in Zurich, St. Gallen and Frauenfeld will be happy to assist you with any questions in this regard.
On the basis of their subject-matter, civil cases are distributed among different courts, according to their corresponding areas of responsibility. The subject-matter jurisdiction determines which of several courts of first instance is competent to judge a case. Based on this, one can deduce at which court within the competent canton the action can be filed. Accordingly, the local jurisdiction must be clarified in a first step in order to subsequently determine which court has subject-matter jurisdiction.
The subject-matter jurisdiction is generally governed by cantonal law. The cantons are free to provide for specialized courts or special courts for certain matters. However, there are individual federal provisions on subject-matter jurisdiction in the CPC, to which all cantons must adhere. For example, the Code of Civil Procedure provides for a single cantonal instance for certain areas (such as antitrust disputes or actions against the Confederation) or for special jurisdiction if a canton has commercial courts as well as special jurisdiction provisions in the case of counterclaims. The attorneys in Frauenfeld, Zurich and St. Gallen can explain the cantonal and federal legal norms in this regard.
Functional jurisdiction indicates to which instance an action is to be filed. It regulates the successively competent judicial bodies. Essentially, these are the first instance and the appellate instance. Our attorneys at law for litigation in Switzerland can provide you with detailed information on the various instances. The functional jurisdiction of the courts is also governed by cantonal law, unless federal law provides otherwise. The reason for this is that this aspect of jurisdiction is inextricably linked to the organization of the courts, which is reserved to the cantons.