Facts
In this case, it was about proceedings before the Commercial Court of the Canton of Zurich, in which A. (plaintiff) filed a claim against C. AG (defendant) for the surrender of registered shares or a certificate of ownership of registered shares of C. AG. After a conciliation hearing, at which no agreement was reached, C. AG demanded the holding of an oral main hearing.
The Commercial Court ordered that the main hearing should take place on April 7, 2020 in the form of a video conference. C. AG did not agree with this and requested the cancellation and postponement of the main hearing. This request was rejected. The main hearing was then held on April 7, 2020 by video conference, which C. AG did not attend.
The Commercial Court upheld the claim in full. C. AG appealed against this to the Federal Supreme Court.
Considerations
The Federal Supreme Court upheld the appeal of C. AG. It stated that the Civil Procedure Code conceives the main hearing as an oral hearing in the courtroom with the physical presence of the parties and court members. Conducting the main hearing by video conference without the consent of all parties is not legally permissible within the scope of the Civil Procedure Code.
The Federal Supreme Court clarified that the legislator did consider electronic forms of communication when enacting the Civil Procedure Code, but only provided for these in certain areas such as the electronic filing of submissions or the electronic service…