Q&A: commercial litigation proceedings in Switzerland

Progressing the case

Typical procedural steps

What is the typical sequence of procedural steps in commercial litigation in this country?

The typical sequence of procedural steps in commercial litigation is as follows:

  • conciliation request by the claimant, followed by a conciliation hearing (if mandatory);
  • written statement of claim;
  • written statement of defence;
  • instruction hearing for settlement talks (within the discretion of the court, but done as a matter of course by commercial courts);
  • second exchange of briefs (reply and rejoinder; may also be oral pleadings);
  • main hearing for the taking of evidence (in particular witness testimony) and the parties’ comments on the evidence taken; and
  • judgment.

Bringing in additional parties

Can additional parties be brought into a case after commencement?

Yes, additional parties can be brought into, or intervene in, a case. The main forms of inclusion are the following:

  • principal intervention: any person who claims to have a better right in the object of a dispute may bring a claim directly against both parties (article 73 of the Swiss Civil Procedure Code (CPC));
  • accessory intervention: any person who shows a credible legal interest in a pending case may intervene in support of either party (articles 74 et seqq CPC);
  • third-party notice: a party may notify a third party of the dispute to extend the effects of a unfavourable judgment to such third party with a view to a possible recourse, whereupon such third party may intervene to support the notifying party (articles 78 et seqq CPC); and
  • third-party action: a party may apply to the court for permission to lodge a possible action for recourse against a third party within the main proceedings in the event of an unfavourable judgment on the main claim (articles 81 et seqq CPC).

 

Furthermore, the court has discretion to consolidate proceedings involving different parties (article 125(c) CPC).

Consolidating proceedings

Can proceedings be consolidated or split?

Yes, the court may, in its discretion, consolidate or split actions for the purpose of simplifying the proceedings (article 125 CPC). It may also limit the proceedings to individual issues or prayers for relief.

Court decision making

How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?

Article 168 CPC sets out an exhaustive list of the admissible means of evidence:

  • witness testimony;
  • documentary evidence;
  • judicial inspection;
  • expert opinion;
  • written information requested by the court; and
  • examination or evidentiary statements of parties.

 

All means of evidence carry equal weight and the court is free in its assessment of the evidence presented (article 157 CPC).

Pursuant to article 8 of the Swiss Civil Code (CC), the burden of proving the existence of an alleged and disputed fact rests on the person deriving rights from such fact, unless the law provides otherwise.

If no facilitating exception applies, Swiss law requires strict or full proof, meaning that the court must, on objective grounds, be convinced of the truth of the alleged fact and must not have any or only minor remaining doubts as to its existence.

How does a court decide what judgments, remedies and orders it will issue?

In principle, the court is bound by the parties’ prayers for relief (article 58 CPC) and cannot award or order more, or something different, than specifically requested by a party.

Evidence

How is witness, documentary and expert evidence dealt with?

The parties must present their evidence in the correct form and in a timely manner, after which evidence may only be introduced under restrictive conditions. Swiss courts often show a preference for documentary evidence over oral evidence.

Documentary evidence available to a party must be filed together with its brief. While it is possible to request production of documents from the adverse party or a third party, Swiss courts are very restrictive in granting such requests.

Witnesses must testify orally; written witness statements are inadmissible as evidence. Witnesses are examined by the court and counsel is only admitted to submit supplementary questions. Contacts between counsel and potential witnesses are only admissible under specific limitations, and may potentially taint the evidentiary value of a witness’ testimony.

Experts can be requested by the parties, but must be appointed by the court to qualify as ‘evidence’. Expert opinions submitted by a party alone are considered mere allegations of such party.

How does the court deal with large volumes of commercial or technical evidence?

Due to the absence of disclosure or discovery, the volumes of evidence are rarely excessively large. A judge can make the necessary determination, if he or she has the necessary special expertise to assess and weigh such evidence. Thereby, the court must disclose the special expertise of one of its members and allow the parties to comment (article 183(3) CPC). This may, in particular, occur before the commercial courts or other specialised courts (eg, the Federal Patent Court) that have technical judges. In the absence of such special expertise, a court will generally appoint an expert to provide an opinion on the issues relevant for deciding the case.

Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?

If a request is made in the correct form, witnesses in Switzerland can be compelled to give evidence to a foreign court. Switzerland is a party to several bi- and multilateral treaties governing the taking of evidence, in particular the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 18 March 1970 (1970 Hague Convention) and the Hague Convention relating to Civil Procedure of 1 March 1954 (1954 Hague Convention). If no treaty applies, Swiss courts will apply the 1954 Hague Convention by default (article 11(a) of the Swiss Private International Law Act).

Foreign persons can only be summoned to testify before a Swiss court if they have their domicile in Switzerland. Persons living abroad cannot be compelled to appear before a Swiss court as a witness. In such case, the Swiss court would request a foreign court to hear the witness through international judicial assistance (eg, under the Hague Conventions).

Note that Switzerland has a blocking statute in article 271 of the Swiss Penal Code (SPC): According to this provision, it is a criminal act to conduct or facilitate activities on behalf of a foreign state (including foreign courts) on Swiss territory without lawful authority. The taking of evidence on Swiss territory is considered to be within the sole purview of the Swiss courts. Accordingly, it is illegal to take evidence in Switzerland for foreign court proceedings outside the formal channels.

How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?

Witnesses are examined by the judge. The parties’ role is limited to submitting supplemental questions, which are usually posed by the judge or may, with leave by the court, be asked by counsel directly. Accordingly, there is no cross-examination. The court may, however, order a confrontation of witnesses or parties (article 174 CPC).

If the authenticity of a certain document is disputed on sufficient grounds, the party relying on such document as evidence is required to prove its authenticity (article 178 CPC).

Time frame

How long do the proceedings typically last, and in what circumstances can they be expedited?

First instance proceedings may typically last 12 to 18 months (excluding conciliation, if any).

The means for expediting the proceedings depend on the specifics of a case (eg, if the fact and legal issues are undisputed or can successfully be presented as clear, or if a signed acknowledgement of debt is available).

Gaining an advantage

What other steps can a party take during proceedings to achieve tactical advantage in a case?

There are many tactics available to achieve an advantage. However, they usually depend on a party’s role and the specifics of the individual case. A claimant may, for example, consider measures to limit its risks (eg, by submitting a partial or a step-by-step action, by freezing assets or obtaining interim measures, or by obtaining litigation funding). A defendant may, for example, consider playing for time (eg, by raising procedural objections) and/or increasing the cost of litigation for the claimant (eg, by filing a counterclaim or by requesting security for its legal costs or damage caused).

Impact of third-party funding

If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?

Third-party funding may enable a claimant to pass the high cost barriers for litigating in Switzerland and to litigate its case to the very end. It may also have an impact on the parties’ incentives to reach, or refrain from, a settlement.

Impact of technology

What impact is technology having on complex commercial litigation in your jurisdiction?

The impact of technology is still limited in Swiss court proceedings. While electronic filing has been possible for a decade, this option is seldom used and litigation proceedings are mainly paper based.

Under certain conditions it is possible to hold Swiss court hearings by video conferencing. While the legal basis for such hearings is still provisional (currently limited until 31 December 2022), permanent rules should be included in the pending revision of the CPC.

Parallel proceedings

How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?

Civil proceedings can be conducted before, in parallel with or after regulatory or criminal proceedings. Due to the absence of disclosure and discovery in civil proceedings, claimants tend to await the evidence resulting from a regulatory or criminal proceeding before lodging their civil action. Defendants tend to try to slow down regulatory or criminal proceedings and to restrict potential civil litigants’ access to such evidence.

Prosecution is within the exclusive competence of the public authorities and there is no private prosecution. However, the victim of a criminal offence may include his or her civil claims in criminal proceedings. Unless the criminal court considers such civil claims to be too complex, this can be advantageous because criminal proceedings tend to be shorter and less costly than civil proceedings and because the facts are established ex officio.

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