In decision 4A_416/2019, the Swiss Federal Supreme Court had the opportunity to comment fundamentally on the question of the claimant’s obligation to participate in the conciliation hearing. The Swiss Federal Supreme Court has now decided that the claimant must participate in the conciliation hearing even if the defendant has already announced that she will not participate in the hearing.
In the underlying case, the defendant has informed the conciliation authority of the Justice of the Peace Office District IX of the Canton of Aargau that neither she nor her legal representative will participate in the conciliation hearing. The conciliation authority informed the claimant accordingly. For reasons of procedural economy, the claimant thereupon requested that he be dispensed from appearing at the conciliation hearing and that the permission to file a claim be issued without a hearing. The conciliation authority granted this request and issued the authorization to file a claim with the remark “without a conciliation hearing”.
The Kulm District Court did not admit the subsequently filed claim for lack of a valid permission to file a claim. The High Court of the Canton of Aargau also dismissed the appeal against the first instance decision. The Swiss Federal Supreme Court upheld this decision and stated that it was up to the legislator to create the possibility to waive the conciliation hearing in such cases. There is therefore a fundamental obligation to conciliate, except for the exceptions listed in Art. 198 and Art. 199 para. 2 of the Code of Civil Procedure.
The Swiss Federal Supreme Court further stated that even a joint waiver of the conciliation procedure was only possible in cases with an amount in dispute exceeding CHF 100,000.00. Various divergent opinions in legal doctrine were not able to change the Swiss Federal Supreme Court’s opinion. Rather, the highest judges in Switzerland held that it is only at the conciliation hearing itself that it is certain that the defendant really will not participate. In the opinion of the Swiss Federal Supreme Court, even a joint statement by the parties in the run-up to the conciliation hearing could not change this.
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