Facts
By judgment of 17 December 2014, the District Court of Zurich ordered the defendant (B.) to pay CHF 3,895,207.80 plus interest to the plaintiff (A. AG). B. appealed against this judgment to the Cantonal Court of Zurich. By order of 9 March 2015, the Cantonal Court set the respondent (A. AG) a deadline of 30 days under Art. 312 para. 2 CPC to file an appeal response.
On 13 April 2015, the respondent requested that the appellant be ordered to provide security of CHF 80,449 to secure her party compensation and that the set deadline for filing the appeal response and any cross-appeal be suspended until the requested security was provided and, if necessary, be reset. By order of 14 April 2015, the Cantonal Court dismissed the respondent's request for suspension of the deadline for filing the appeal response and any cross-appeal.
Considerations
The Federal Supreme Court dismisses the respondent's appeal against the rejection of the request for suspension of the deadline for filing the appeal response.
The lower court rightly stated that the 30-day deadline for filing the appeal response under Art. 312 para. 2 CPC is a statutory deadline that cannot be extended in the interest of equality of arms. In contrast to the first instance proceedings, where the court-imposed deadline for the statement of defence can be interrupted or extended upon receipt of a request for security for party costs, the suspension and subsequent resetting of the deadline in the present case is not possible for reasons of equality of arms.
While some legal scholars take the view that the appellate court can temporarily suspend the deadline for the respondent to respond to the appeal until the appellant has provided security for the party compensation, the Federal Supreme Court has expressly left this question open in a recent judgment.
The Federal Supreme Court states…