Facts
The appellant, [D. AG] , had filed a lawsuit against [A.] with the Commercial Court of the Canton of Zurich. After an unsuccessful mediation hearing and the submission of a reply and a rejoinder, [D. AG] requested the conduct of an oral main hearing. The Commercial Court then ordered that the main hearing be held on April 7, 2020, in the form of a video conference. [D. AG] objected to this order and requested the cancellation and postponement of the main hearing, which was rejected. The main hearing took place without the participation of [D. AG] , and the Commercial Court fully upheld the claim.
[D. AG] filed an appeal against the judgment of the Commercial Court and requested the annulment of the judgment as well as the remittal of the case for the conduct of a lawful main hearing. The respondent, [A.] , waived the right to comment and made no requests.
Considerations
The Federal Court examined whether the conduct of the main hearing via video conference was admissible. It found that the Code of Civil Procedure (CPC) conceives the main hearing as an oral hearing in the courtroom with the physical presence of the parties and the court members. Although the CPC provides for the recording of hearings by video or other suitable technical means, it does not provide for the conduct of a main hearing via video conference.
The Federal Court found that the Vice President of the Commercial Court was not authorized to order the conduct of the main hearing via video conference, as this has no legal basis. It pointed out that the CPC regulates the use of technical aids, but does not provide a basis for obliging a party to participate in a main hearing conducted via video conference.
The Federal Court also found that the COVID-19 Ordinance…