Facts
On 23 February 2010, A. filed a bankruptcy petition against X. GmbH. The district court scheduled the bankruptcy hearing for 6 May 2010. X. GmbH initiated a procedure under Article 85a DEBA and convened a conciliation attempt on 5 March 2010. The district court scheduled the conciliation attempt for 7 May 2010, but then moved the date forward to 5 May 2010 at the request of X. GmbH.
After the conciliation attempt failed, X. GmbH filed a negative declaratory action on 5 May 2010, requesting suspension of proceedings. The district court rejected the suspension request, arguing that there was not enough time to hear the opposing party before the bankruptcy decision. X. GmbH appealed this decision, which was rejected by the cantonal court.
Considerations
The Federal Court examined the question of whether the district court had acted contrary to the law by rejecting the suspension request. The Court considered that the district court had violated the principle of trust and the right to a fair trial by not suspending proceedings, despite X. GmbH's request.
The Court also examined the question of whether the district court could suspend proceedings on a provisional basis. The Court considered that the district court could do so, under Article 308a Abs. 1 ZPO/BE, which allows the judge to take provisional measures in case of imminent danger.
The Court concluded that the district court had acted contrary to the law by not suspending proceedings and not taking provisional…