Facts
Bank [A.] (appellant) had filed a claim against [B.] (respondent) for the payment of around 22 million Swiss francs. The District Court of Zurich upheld the claim and dismissed the counterclaim of the defendant. Upon the defendant's appeal, the High Court of the Canton of Zurich stayed the proceedings, as the parties had reached an out-of-court settlement. When the parties informed the High Court that the relevant bodies of the bank had approved the settlement, the High Court considered the proceedings to be without object and struck the case out.
The bank filed a civil law appeal against this decision to strike out the case. The FSCA annulled the decision of the High Court and remitted the case to the High Court for a new assessment. The FSCA reasoned that the High Court should not have struck the case out without further ado, as the parties continued to adhere to the request for a stay and the content of the out-of-court settlement was not known. Thus, it was unclear whether the interest in legal protection had actually lapsed. The High Court should have heard the parties before issuing the decision to strike out the case.
Considerations
The FSCA stated that in the case of an out-of-court settlement, the lack of subject matter is not necessarily given and the court must hear the parties before striking the case out under Art. 242 CPC. Since the High Court had failed to do so and had struck the case out without further ado, it had…