Facts

The decision concerns a dispute between R. SA (the plaintiff) and D. AG (the defendant) before the Commercial Court of the canton of Berne. On 9 March 1998, the investigating judge ordered both parties to pay an advance of costs of 30'000 CHF each. The defendant requested that its obligation to pay the advance of costs be cancelled, but the investigating judge rejected this request on 7 May 1998. The defendant then filed a constitutional appeal with the Federal Court, arguing that the obligation to pay the advance of costs violated its right to be heard guaranteed by Article 4 of the Federal Constitution.

The key facts are as follows

  • The plaintiff brought an action against the defendant before the Commercial Court of the canton of Berne.
  • The investigating judge ordered both parties to pay an advance of costs of 30'000 CHF each.
  • The defendant requested that its obligation to pay the advance of costs be cancelled, but the investigating judge rejected this request.
  • The defendant filed a constitutional appeal with the Federal Court, arguing that the obligation to pay the advance of costs violated its right to be heard.

Considerations

The Federal Court rejected the defendant's appeal, considering that the obligation to pay the advance of costs did not violate its right to be heard. The Federal Court considered that the right to be heard guarantees the defendant the right to present its defence and produce evidence, but it does not exempt it from paying court costs.

The Federal Court also considered that the Bernese practice, which…