Allocation of costs for the conciliation procedure in the context of the final judgment

Facts

This decision concerns a civil appeal filed by A. against B. SA. The dispute concerns the question of whether the ordinary judge can award costs for the conciliation procedure in the context of his final judgment, despite the prohibition provided for in Art. 113 para. 1 CPC.

Considerations

The Federal Tribunal begins by examining the scope of Art. 113 para. 1 CPC, which states that "no costs are awarded in the conciliation procedure". Some commentators believe that this prohibition only applies when the conciliation is successful, but not when it fails. Others consider that it is absolute and also applies in the context of a subsequent judgment procedure.

The Federal Tribunal holds that Art. 113 CPC opposes the allocation of costs "in" the conciliation procedure, but not "for" this procedure in the context of the final judgment. This solution does not go against the purpose pursued by the legislator, which was to promote the success of the conciliation attempt. Furthermore, it would often…