Facts
On August 28, 2017, the appellant A. filed a conciliation request with the Conciliation Authority of Berner Jura-Seeland against the respondent B. S.A. The Conciliation Authority did not enter into the request, as the Commercial Court had subject-matter jurisdiction. On October 2, 2017, A. subsequently filed a claim with the Commercial Court of the Canton of Bern, with the legal request corresponding to that in the conciliation request. A. requested that the date of the first filing with the Conciliation Authority be deemed the date of pending proceedings.
The Commercial Court dismissed the claim. Thereupon, A. filed an appeal in civil matters with the Federal Supreme Court.
Considerations
In its judgment, the Federal Supreme Court held that the retroactive effect of pending proceedings pursuant to Art. 63 para. 1 CPC requires that the claimant resubmits the same legal document that he originally filed with an incompetent court, in the original, to the authority he considers competent. This also applies if the initially filed submission was a conciliation request, provided that it meets the requirements of a statement of claim.
The Federal Supreme Court thus confirmed its previous case law. It explained that while the claimant has the possibility to improve and supplement the submission, he must file the same legal document in the original in order to achieve the retroactive effect…