"In a legal dispute, every person has the right to have their case determined by a court." While this provision of the Swiss Constitution (Art. 29a) sounds promising, the economic reality often falls short of this ideal. It is commonly said in Switzerland that only the rich and the poor (who benefit from legal aid) can afford to pursue court litigation, while those in the middle are often left struggling with prohibitive costs, forcing them to abandon their claims or settle disputes based on financial pressures rather than legal merits.
In this article we will have a closer look at the actual costs of civil and commercial court litigation in Switzerland, who bears these financial burdens, and why it may be beneficial for claimants to wait until 2025 before filing their claim in a Swiss court.
Who pays what?
The allocation of procedural costs—deciding who pays for what—is governed by the Swiss Federal Code of Civil Procedure. However, the actual rates—how much is paid—are determined by each of Switzerland’s 26 cantons for their courts, resulting in cost differences depending on the location. The rates for appellate procedures to the Swiss Federal Court are determined by an ordinance of said court.
Civil procedure costs include both court costs and party costs. In its final decision, each court instance allocates these costs based on the outcome of the case (Art. 106 CCP). If the claimant (or plaintiff, as you may call the party that initiates a process) is successful, the defendant must pay all court costs and compensate the plaintiff for their party costs. The reverse applies if the defendant wins.
However, there are two important caveats to this general rule:
Attorney’s Fees Compensation: The successful party’s compensation for attorney’s fees is based on a schedule determined by each canton. This compensation often does not cover the actual – though reasonable - attorney’s fees, particularly in cases involving lower amounts in dispute.
Collection Risk for Court Fees: Under the current CCP, claimants (or plaintiffs) must advance the estimated court costs (Art. 98 CCP). Failure to do so renders the claim inadmissible. If the claimant wins, the defendant becomes liable for the court costs. However, the court uses the claimant’s advance payment to cover the fees first, leaving the claimant with only a claim to recover the costs from the defendant—thus bearing the risk of collection.
Revised Advance Payment and Collection of Court Fees
The revised CCP, set to take effect as of 2025, introduces significant improvements for claimants in regard of the court fees. It generally limits the advance on court costs to half of the presumed total, reducing the financial burden for claimants and increasing access to the courts (Art. 98(1) CCP). However, exceptions apply, particularly in commercial disputes, summary proceedings related to debt enforcement, and appellate cases, where full advance payments may still be required (Art. 98(2)(a–d) CCP).
A major amendment in the revised CCP is the transfer of the collection and insolvency risk for court costs from the prevailing party to the cantonal treasuries. The court will only deduct court costs from the claimant's advance to the extent that the claimant is liable. If the claimant wins, the advance payment will be reimbursed (Art. 111(1) and (2) CCP), and it becomes the court's responsibility to collect the fees from the defendant, thereby shifting more of the financial burden onto taxpayers while providing relief to those seeking justice.
New Calculation of Costs in Cases with Counterclaims
A change that can affect the risk assessment and litigation strategy very significantly has been made regarding the calculation of court fees in cases where a partial action (e.g. an action for damages in the amount of CHF 30,000 based on tort, whereby CHF 30’000 is only a part of the potential claim) faces a negative declaratory counter action with a far higher amount in dispute (e.g an action seeking a declaration that no compensation is due, where the potential total compensation is several CHF 100’000). Under the new law, costs and compensation will be calculated based solely on the main claim, not on the higher value of the counterclaim (Art. 94(3) CCP). This aims to prevent claimants from being deterred from pursuing their action due to the financial risks posed by a counterclaim of significantly higher value. The new rule applies, however, only when the counterclaim challenges the entire existence of the plaintiff's claim.
How much does it cost?
Federal law provides that no court fees are imposed in certain social and small claims procedures, such as in labor law and tenancy disputes with a value of up to CHF 30 000. In all other cases, as previously mentioned, the rates for court costs and compensation for attorney's fees are determined by the laws of each of Switzerland's 26 cantons and an ordinance of the Swiss Federal Court. These schedules often follow similar calculation principles and provide for a specific mount or a range for a "basic fee" or "middle fee" depending on the amount in dispute when the claim has a monetary value. The basic fee may then be adjusted—either increased or decreased—depending on factors such as the nature and complexity of the procedure, the number of briefs and hearings, and other relevant considerations. As a result, the final fee could be a multiple or a fraction of the basic fee or at the lower or higher end of a fee range.
Accurately estimating court fees in advance requires substantial research and experience, as they depend on the specifics of each case. Zurich is the only canton that offers significant assistance in this regard, providing an online procedure fees calculator (accessible here).
To give readers a better sense of basic fees for a process at the first court instance across various cantons, we have included several tables below. The first table shows basic court fees and basic compensation amounts for attorney’s fees for a case with a value in dispute of CHF 1 000 000 (one million Swiss Francs), based on the canton’s relevant legal act in September 2024. Where the relevant act provides for a fee range, we provide a plausible amount within such range. As mentioned above, the actual costs in a specific procedure are likely multiples or a fraction of the indicated fees and will include additional costs for expenditures.
The following tables shows basic court fees and basic compensation amounts for attorney’s fees for different amounts in dispute for the two cantons of Zurich and Basel-Stadt the give an additional idea of such costs in these cantons:
Security as an Additional Pay Wall
In the context of transnational litigation, it is important to note that, in addition to advance payments of court fees, the financial barrier to litigation can be further increased by the defendant requesting that the claimant provide security for potential party costs. This is particularly relevant when the claimant is domiciled in a country with which Switzerland does not have a treaty covering court and party costs (Art. 99 CCP), adding an extra hurdle for cross-border litigation.
Costs in Case of Settlement During Court Proceedings
If the parties reach a settlement during court proceedings, they are free to agree on how to allocate the costs between them. Typically, in such agreements, each party covers its own attorney’s fees, and court costs are shared. To encourage settlements, courts often reduce the court fees significantly, providing an additional incentive for both parties to resolve the dispute outside of a full trial with a judgement on the merits.
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