1. LITIGATION - PRELIMINARIES
1.1 What type of legal system does your jurisdiction have? Are there any rules that govern civil procedure in your jurisdiction?
Switzerland has a civil law legal system. The civil procedure is governed by the Swiss Code of Civil Procedure ("SCCP") and the Federal Supreme Court Act ("FSCA"). The SCCP governs the civil proceedings before all cantonal courts of first and second instance in Switzerland, including domestic arbitration. The FSCA governs all proceedings before the Swiss Federal Supreme Court, including domestic and international arbitration appeal proceedings.
In cases with a foreign component, e.g. a party or both is/are domiciled abroad, the Federal Act on Private International Law ("PILA") applies and rules on: (i) the jurisdiction of Swiss judicial authorities; (ii) the applicable law; (iii) the prerequisites for the recognition and enforcement of foreign decisions; (iv) bankruptcy and composition; and (v) international arbitration. The Lugano Convention of 30 October 2007 on jurisdiction, recognition and enforcement of judgments in civil and commercial matters ("LC") governs the same fields as the PILA, except arbitration, but applies as the priority over citizens and companies both with domicile or headquarters in one of the following countries: Switzerland; countries of the European Community; Denmark; Norway; and Iceland.
Finally, the Swiss Debt Enforcement and Bankruptcy Act ("DEBA") governs debt collection proceedings and the execution of judgments in cases involving monetary judgments. The DEBA allows the initiation of debt enforcement proceedings prior to a court's involvement and can progress without the court's intervention to completion whenever the debtor does not challenge the proceedings.
1.2 How is the civil court system in your jurisdiction structured? What are the various levels of appeal and are there any specialist courts?
As Switzerland is a confederation of 26 states ("cantons"), the civil court system is a two-stage system with a cantonal level and a federal level. Each canton has its own organisation of courts, with at least a lower court and an appeal court. Such courts have competence to hear any disputes based on cantonal and federal law, except for disputes for which federal courts have exclusive jurisdiction.
Moreover, some cantons organise their courts according to the value in dispute and/or by areas of law with special courts, such as for commercial, labour or landlord-tenant-related disputes. Whenever in a financial dispute, the value in dispute is at least CHF 100,000, the claimant, with the defendant's consent, may file its action directly before the higher court, which rules as the sole cantonal instance. Certain other disputes are subject to a unique cantonal instance, such as, among others, disputes in connection with intellectual property rights and antitrust law.
The federal level also has two-stage courts for some federal matters or specific areas, such as patent disputes. The Swiss Federal Supreme Court's main role is to adjudicate appeals of decisions of the highest cantonal courts of appeals and decisions by Swiss federal courts, in specific areas.
1.3 What are the main stages in civil proceedings in your jurisdiction? What is their underlying timeframe (please include a brief description of any expedited trial procedures)?
The SCCP provides for several kind of proceedings: ordinary; summary; and simplified proceedings. Simplified proceedings are for claims with a value in dispute of a maximum of CHF 30,000 and for specific subjects, such as, for instance, labour, gender equality and data protection-related disputes. These proceedings are less formal than ordinary proceedings and give a more active role to courts. Summary proceedings are for certain disputes provided for by law, interim measures and so-called "clear-cut" cases (undisputed or easily provable facts with a clear legal context). The disputes conducted in summary proceedings are expedited trial procedures, to the extent that all deadlines are shorter and the admission of evidence is generally limited to documents. Finally, ordinary proceedings are for all other proceedings, except for certain family matters disputes, which are subject to special provisions.
Ordinary and simplified proceedings generally begin with a conciliation phase before the conciliation authority (exceptions may apply). For summary proceedings, no conciliation phase is needed. In principle, the conciliation is mandatory and conducted on a without-prejudice basis. However, the SCCP provides some exceptions to the conciliation stage for certain actions pertaining to debt enforcement proceedings according to the DEBA, and for specific claims from individuals related to, among others, family law matters. In principle, a conciliation hearing takes place within two months following the filing of the conciliation application. After the conciliation phase, the claimant has to bring his action within a three-month time limit before the lower cantonal court (a shorter one-month time limit applies in certain matters). The applicant can file a new conciliation application if such time limit lapsed unused.
Proceedings before the lower court take from approximately one year to several years, depending on the case's complexity, with a phase of exchange of briefs followed by the hearings and evidence-gathering phase.
Before the appeal court, the duration of the proceedings is between approximately one to two years. In general, no hearings take place before the appeal courts. The same applies to appeals before the Swiss Federal Supreme Court.
1.4 What is your jurisdiction's local judiciary's approach to exclusive jurisdiction clauses?
Whenever the law provides for an exclusive jurisdiction, the parties must comply, and any other jurisdiction clause agreed upon by the parties is invalid. Exclusive jurisdiction exists, among others, for claims for interim measures, family law-related claims, actions related to parent-child relationships and some claims related to inheritance law. Some SCCP provisions on jurisdiction are semi-exclusive in the fields of consumer contracts and labour law, as well as landlord-tenant law. According to those provisions, the "weaker party" (the consumer, employee, tenant) can impose the jurisdiction provided by the SCCP, even though the parties have entered into an exclusive jurisdiction agreement, up to the start of the litigation.
Moreover, in international disputes, the PILA and the LC provide for exclusive jurisdiction rules in areas such as, among others, real estate, lease agreements, patents and dissolution of companies. The PILA and the LC also allow for the jurisdiction clause agreed upon by the parties. The PILA provides that such clause is valid in pecuniary matters if no exclusive legal jurisdiction exists. The agreement has to be in writing and unless otherwise agreed, the choice of court by the parties is exclusive.
1.5 What are the costs of civil court proceedings in your jurisdiction? Who bears these costs? Are there any rules on costs budgeting?
The cantons have the competence to rule on costs of civil proceedings. Costs are divided into court costs and indemnity for legal fees and are normally calculated as a percentage of the value in dispute. Each canton has a different regulation on costs. The same principles apply before the Swiss Supreme Court; however, the basic rules on costs are contained in the FSCA.
When initiating the proceedings, the claimant shall pay in advance the expected court costs for the conciliation and for the proceedings before the lower court. As for the appeal stage, the appellant bears the advance of costs. Those advances of costs at the cantonal level might be divided by half, subject to exceptions, according to the new rules of the SCSP that should be adopted in the near future by the Swiss parliament.
The principle of cost allocation at all stages of the civil proceedings is that the unsuccessful party bears the costs, including the court costs and indemnity for legal fees of the successful party. If no party is entirely successful, the costs are allocated in accordance with the outcome of the case. There are no rules on costs budgeting in Switzerland.
1.6 Are there any particular rules about funding litigation in your jurisdiction? Are contingency fee/conditional fee arrangements permissible?
Concerning the court costs, the claimant or appellant shall pay the advance of costs and no arrangement with the court is possible. However, an indigent claimant or appellant can seek a waiver. Moreover, third-party funding is legal in Switzerland, as long as the chosen funder does not interfere with the lawyer's independence in the case.
As for legal fees, contingency or conditional fees are not permitted in Switzerland. However, a success fee is possible as long as it does not interfere with the lawyer's independence. Hence, the main remuneration of the lawyer shall be paid independently and remain disconnected from the outcome of the case.
1.7 Are there any constraints to assigning a claim or cause of action in your jurisdiction? Is it permissible for a non-party to litigation proceedings to finance those proceedings?
Under Swiss law, a claim cannot be divided into a claim on the merits and a right of action. Only the assignment of the claim, which leads to a change in the holder of the claim, gives the assignee the right to sue. The creditor can assign a claim under the following conditions:
- the assignment is not forbidden by law or by contract; and
- the nature of the legal relationship does not prevent the assignment.
As mentioned above, third-party funding is possible in Switzerland, as long as the lawyer remains fully independent and continues to respond exclusively to the client's interest and not to those of the third-party funder.
1.8 Can a party obtain security for/a guarantee over its legal costs?
At the request of the defendant, the claimant must provide security for party costs if the claimant has no residence or registered office in Switzerland, or if the claimant appears to be insolvent or owes costs from prior proceedings. However, in general, no security needs to be provided for proceedings with a value in dispute below CHF 30,000, in divorce proceedings and in almost all summary proceedings. Moreover, some international conventions exclude the security for party costs, such as the Hague Convention of 1 March 1954 on civil procedure, the Hague Convention of 25 October 1980 on International Access to Justice, and the LC. Finally, some bilateral treaties concluded between Switzerland and a state of which the foreign claimant is a national can also exclude the security for party costs.
2. BEFORE COMMENCING PROCEEDINGS
2.1 Is there any particular formality with which you must comply before you initiate proceedings?
As explained at question 1.3, the claimant shall file an application for conciliation before initiating proceedings on the merits, although there are exceptions, as mentioned above.
2.2 What limitation periods apply to different classes of claim for the bringing of proceedings before your civil courts? How are they calculated? Are time limits treated as a substantive or procedural law issue?
Under Swiss law, limitation periods are treated as a substantive law issue. The general rule is that all claims are statute-barred after 10 years unless federal civil law provides otherwise. Claims related to periodic payments as rent or interest on capital have a five-year limitation period. The same applies for claims such as those in connection with alimony, as well as claims made by artisans for their work, of physicians for their care, of attorneys-at-law and notaries for their professional services and of employees for their work. The limitation period starts from the day the debt is due and payable.
Non-contractual claims for damages or for tort compensation are time-barred after three years from the day the injured party became aware of the damage and of the person liable and, in any case, after 10 years from the day the harmful event occurred or ceased. An action for unjust enrichment is barred after three years from the day the injured party became aware of his/her right of recovery and, in any case, after 10 years from the date on which the right arose. Warranty claims for defect of goods are statute-barred after two years from the date of delivery to the purchaser. In the event of death or physical injury, an action for damages or for tort compensation is time-barred after three years from the day the injured party became aware of the damage and, in any event, after 20 years from the day on which the harmful event occurred or ceased.
Several methods exist by which to interrupt the statute of limitation period. The simplest is probably the filing of an application to start debt collection proceedings (a simple form) with the competent debt collection office.
3. COMMENCING PROCEEDINGS
3.1 How are civil proceedings commenced (issued and served) in your jurisdiction? What various means of service are there? What is the deemed date of service? How is service effected outside your jurisdiction? Is there a preferred method of service of foreign proceedings in your jurisdiction?
A claimant commences civil proceedings by filing the application for conciliation, when mandatory, or otherwise by filing directly the statement of claim. All communication to the court can either be filed in person with the court or by registered mail. Electronic submission is possible on the condition that it bears a qualified electronic signature in accordance with the Federal Act of 18 March 2016 on Electronic Signatures. The deemed date of service is the day the document is filed in person, by registered mail or electronically. The court is responsible for circulating all documents it receives to the other parties to the proceedings. No formal service by the parties directly or by their representatives is allowed. Service by the court is deemed accomplished once the party receives the document or seven days after the reception of notice to collect the registered mail.
Direct service of judicial documents from abroad is permitted only if it is provided for in an international treaty or if the Federal Council authorises it. The service of judicial documents by way of mutual legal assistance is governed by the Hague Conventions of 1 March 1954 on civil procedure and of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. In the absence of an applicable treaty, judicial documents must be delivered through diplomatic channels.
3.2 Are any pre-action interim remedies available in your jurisdiction? How do you apply for them? What are the main criteria for obtaining these?
Each individual or company who considers that his/her/its rights have been infringed or are threatened by imminent breach may request interim measures by means of an application to the lower cantonal court. The proceedings for interim measures are conducted in summary proceedings so that no conciliation is necessary. The applicant has to render likely (i) an infringement of his/her own rights or the risk of imminent infringement, and (ii) that this infringement is likely to cause him/her prejudice that is difficult to repair. In case of extreme urgency, the applicant may apply for ex parte interim measures requesting that the court rule immediately without hearing the opposing party. When ruling on a request for interim measures, the court will hear the opponent either in writing or orally, or sometimes both. The court may order any interim measures to prevent or stop the harm from occurring. Once the interim measures are obtained, the applicant has to validate them by initiating proceedings on the merits within a set time limit. Should the applicant fail to validate them, the ordered interim measures expire.
The creditor of a due debt not secured by pledge may request the civil attachment of the debtor's assets which are located in Switzerland, provided that the debtor resides abroad, that the claim has a sufficient connection with Switzerland or that it is based on an acknowledgment of debt. Attachment can also be requested against a debtor (independently from his/her place of residence) when the creditor has an enforceable decision against the debtor. In his/her application, the creditor has to render it likely that his/her claim exists, as well as the existence of the debtor's assets located in Switzerland.
3.3 What are the main elements of the claimant's pleadings?
The main elements of the statement of claim are: (i) the designation of the parties and, if applicable, their representatives; (ii) the prayers for relief; (iii) an indication of the amount in dispute; (iv) allegations of fact with, for each allegation, an indication of the evidence offered; and (v) the date and signature. A legal reasoning is not mandatory, even though a section is generally devoted to it in the statement of claim.
3.4 Can the pleadings be amended? If so, are there any restrictions?
Amendments of the claim are possible up to the first hearing or the second exchange of briefs, so long as they are governed by the same kind of proceedings and one of the following conditions is met: (i) the claim's amendment is related to the last claim; or (ii) the opponent consents to the amendment of the application. Afterwards, amendments must be based on new facts or evidence that did not exist before or were not accessible, provided that the above-mentioned condition is also fulfilled. A limitation of the claim is possible anytime.
3.5 Can the pleadings be withdrawn? If so, at what stage and are there any consequences?
The claimant can withdraw the pleadings at any stage of the proceedings. The withdrawal has no consequence as long as the court has not served the claim upon the defendant or when the defendant has accepted the withdrawal. Under these conditions, the claimant may reintroduce the claim against the same party and on the same subject matter before the competent court. Otherwise, the claimant loses the possibility to reintroduce and the claim becomes res judicata.
4. DEFENDING A CLAIM
4.1 What are the main elements of a statement of defence? Can the defendant bring a counterclaim(s) or defence of set-off?
The main elements of the statement of defence are similar to those of the statement of claim. In addition, the defendant shall state if the facts alleged by the claimant are admitted or disputed.
The defendant can bring a counterclaim (if the court is competent to know such counterclaim) or a defence of set-off (provided such defence is timely raised).
4.2 What is the time limit within which the statement of defence has to be served?
In first instance, the time limit to file the statement of defence with the court is set by the court, usually between one and three months, with a possible extension. On appeal, the time limit to file the statement of defence is 30 days (10 days in case of summary proceedings) and cannot be extended.
4.3 Is there a mechanism in your civil justice system whereby a defendant can pass on or share liability by bringing an action against a third party?
In Switzerland, a defendant can pass on or share liability with a third party either by notifying a third party to integrate the litigation or by notifying the third party of the existence of the litigation, while informing it that in case the dispute is lost it might take recourse against it. The notified party shall choose between intervening in the proceedings or ignoring the notification at its own risk and peril.
4.4 What happens if the defendant does not defend the claim?
In the absence of a timely filed statement of defence, the court will automatically grant an additional short time limit to the defendant (so-called "grace period"). If the defendant fails again to file a statement of defence, the court may either issue a judgment on the merits or summon the parties to a hearing.
4.5 Can the defendant dispute the court's jurisdiction?
Yes, the defendant can dispute the court's jurisdiction, but shall raise such objection at the outset of the proceedings before submitting its defence on the merits.
5. JOINDER & CONSOLIDATION
5.1 Is there a mechanism in your civil justice system whereby a third party can be joined into ongoing proceedings in appropriate circumstances? If so, what are those circumstances?
As described at question 4.3 above, a third party can be joined into ongoing proceedings if the defendant intends to pass on or share liability with such third party.
5.2 Does your civil justice system allow for the consolidation of two sets of proceedings in appropriate circumstances? If so, what are those circumstances?
Consolidation of two sets of proceedings is possible in Switzerland, in particular when the parties are the same and the facts are similar or closely connected in both proceedings. The decision to consolidate lies with the court and not with the parties.
5.3 Do you have split trials/bifurcation of proceedings?
Swiss courts may unilaterally or at the request of a party, usually the defendant, decide to split trials or bifurcate proceedings in Switzerland.
6. DUTIES & POWERS OF THE COURTS
6.1 Is there any particular case allocation system before the civil courts in your jurisdiction? How are cases allocated?
Switzerland being a federal state, the court practice for case allocation may vary depending on the canton, some of which have special courts or court sections specialised in complex commercial matters or other matters (see question 1.2). But as a rule, cases are distributed randomly between similarly competent courts or judges.
6.2 Do the courts in your jurisdiction have any particular case management powers? What interim applications can the parties make? What are the cost consequences?
Swiss judges have the authority to direct the proceedings to ensure the efficiency and speed of the same on their dockets, including by spontaneously facilitating settlements.
During the proceedings, each party may make applications to obtain an extension of the time limit, a stay or an order of the court related to interim measures aimed, for example, at preventing a harm or stopping a prejudice from worsening. The court can request the applicant to place a bond. The court usually allocates the cost in the final judgment on the merits, according to the result of the proceedings taken globally.
6.3 What sanctions are the courts in your jurisdiction empowered to impose on a party that disobeys the court's orders or directions?
In situations of parties' misbehaviour at hearings or of blatant bad faith by a party or by his/her representative, the court may impose relatively small monetary fines upon them.
Aside from that, a party that disobeys a court's order or directions may be held to have failed with regard to its obligation of providing a statement or evidence, and may face procedural adverse consequences.
6.4 Do the courts in your jurisdiction have the power to strike out part of a statement of case or dismiss a case entirely? If so, at what stage and in what circumstances?
A written submission that is still not signed or is unreadable, improper, incomprehensible or verbose after the court has set a time limit for its rectification can be ignored by the judge at any stage of the proceedings. Late submissions are also disregarded.
6.5 Can the civil courts in your jurisdiction enter summary judgment?
A Swiss civil court cannot enter a US-style summary judgment even if asked by a party. However, the court may refuse to take certain evidence such as testimony, depositions or expertise requested by the parties if it considers such evidence unnecessary or irrelevant after considering the written evidence previously filed by the parties. In this event, a judgment on the merits can be issued based on the exchange of briefs and documentary evidence already produced, without hearing witnesses or taking additional evidence.
6.6 Do the courts in your jurisdiction have any powers to discontinue or stay the proceedings? If so, in what circumstances?
A court may not discontinue on its own decision a validly filed claim, but must render a judgment on its merits. However, it may stay pending proceedings if deemed appropriate under the circumstances, in particular when the outcome of such proceedings depends on the outcome of other proceedings or the parties are discussing a possible settlement. The decision of the court to stay proceedings can be appealed.
7.1 What are the basic rules of disclosure in civil proceedings in your jurisdiction? Is it possible to obtain disclosure pre-action? Are there any classes of documents that do not require disclosure? Are there any special rules concerning the disclosure of electronic documents or acceptable practices for conducting e-disclosure, such as predictive coding?
As a civil law jurisdiction, Swiss civil procedural rules do not provide for any pre-trial discovery, as in common law jurisdictions.
Is some specific and narrowly defined cases, disclosure of documents or taking of evidence can be obtained before the filing of ordinary proceedings through an application for provisional measures (so-called "precautionary taking of evidence"). Precautionary taking of evidence is possible if (i) specific legal rules provide the right to do so, or (ii) if the applicant shows prima facie that the evidence is endangered and the gathering of this evidence at a later stage would no longer be possible.
That said, during proceedings, the defendant or third parties have a general duty to disclose documents in their possession of which disclosure is specifically requested by the claimant. That said, extensive and generic requests of disclosure of documents are not acceptable. Only specific and explicit requests for the disclosure of documents already identified by the claimant (for instance, a copy of a particular letter whose existence is known by the claimant) are accepted. Privileged documents shall not be disclosed, and in case such documents contain commercial or trade secrets, specific protective measures can be requested. There are neither specific rules nor practices governing the disclosure of electronic documents and e-disclosure.
7.2 What are the rules on privilege in civil proceedings in your jurisdiction?
Swiss law provides for specific rules to protect certain persons (family members) or professions (lawyers, health professionals) giving testimony or providing privileged documents. Attorney's privilege currently applies only to practising lawyers and does not extend to in-house lawyers. That said, this may change in the future, since an amendment of this rule is currently being discussed by the Swiss legislator. Attorney's privilege applies to the attorney him-/herself and to the documents in his/her possession, or to documents he/she sent to his/her client and that are in possession of his/her client.
7.3 What are the rules in your jurisdiction with respect to disclosure by third parties?
In general, third parties have a duty to collaborate in the taking of evidence by testifying or providing documents, unless they can invoke a privilege. A court may, for instance, order third parties to disclose documents or information in their possession. However, such documents must be clearly identified and described by the party seeking to obtain their disclosure (no "fishing expeditions" are allowed).
7.4 What is the court's role in disclosure in civil proceedings in your jurisdiction?
The entirety of the disclosure proceedings is handled by the court. The claimant, within the framework of the ordinary court proceedings, files an application with the court in order to obtain certain specific documents or information from the defendant or a third party. The court, if the conditions are met, then issues an order for disclosure and collects the documents/information to be disclosed.
7.5 Are there any restrictions on the use of documents obtained by disclosure in your jurisdiction?
Specific restrictions may be ordered by the court to protect, for example, commercial or trade secrets. In this case, only certain documents may be disclosed or only redacted versions are available to the parties, with the unredacted versions provided only to the court.
8.1 What are the basic rules of evidence in your jurisdiction?
Each party bears the burden to prove the facts he/she alleges. As a general rule, evidence must be offered for every alleged fact. The court is free to assess the weight of every piece of evidence offered.
8.2 What types of evidence are admissible, and which ones are not? What about expert evidence in particular?
The admissible means of evidence are listed in the SCCP. These are: (i) witness testimony; (ii) documents; (iii) inspections; (iv) expert opinions; (v) written information (provided by public services); and (vi) party testimony. Generally speaking, documents and direct testimony (by witnesses and parties) in front of the court are the main evidence admitted. On the contrary, witness statements are generally not considered acceptable evidence in front of Swiss courts.
8.3 Are there any particular rules regarding the calling of witnesses of fact, and the making of witness statements or depositions?
Witness statements are generally not admitted as valid evidence. The party offering to hear a witness as evidence shall provide the identity and the residence address of the witness to the court. Witnesses are summoned to appear directly before the court. However, the assistance of the parties may be requested, in particular for witnesses under their control (for instance, employees) and/or for witnesses residing abroad. Witnesses are in principle questioned first by the court, with parties able to ask additional questions. It is generally not permitted for lawyers to prepare witnesses before their hearings.
8.4 Are there any particular rules regarding instructing expert witnesses, preparing expert reports and giving expert evidence in court? Are there any particular rules regarding concurrent expert evidence? Does the expert owe his/her duties to the client or to the court?
The parties are free to file party-appointed expert reports. However, these reports shall be handled formally as parties' declarations and therefore have limited evidentiary weight. On the contrary, court-appointed experts carry much more weight in the eyes of the court, since they owe their duties to the court and not to the parties. In case of court-appointed experts, the court shall prepare the list of queries to be submitted to the expert. The parties shall participate in preparing this list. Once the expert is appointed and the list of queries drafted, the court shall provide the expert with the necessary documents and set him/her a deadline to produce his/her report. Once the report is produced, the parties can ask for clarifications or for additional queries. A second opinion may be requested, and experts can appear in front of the court to be heard and answer questions directly.
9. JUDGMENTS & ORDERS
9.1 What different types of judgments and orders are the civil courts in your jurisdiction empowered to issue and in what circumstances?
Courts in Switzerland can issue a whole array of judgments and orders. This spans from judgments ordering a party to pay a certain amount or to execute a particular contractual or legal obligation or certain tasks, to judgments stating a certain fact (declaratory judgments) or modifying certain rights or legal status. Orders can be used more generally to conduct the proceedings or to order (ex parte) interim conservatory or other measures.
9.2 What powers do your local courts have to make rulings on damages/interests/costs of the litigation?
Courts can order the losing party to pay the amounts claimed by the claimant, plus applicable interests (if claimed). In general, the legal interest of 5% p.a. is applied under Swiss law. No punitive damages exist under Swiss law and damages awarded are purely compensatory and correspond to the actual loss suffered. As far as procedural costs are concerned, court fees are paid upfront by the claimant but are eventually borne by the losing party. As far as lawyer's fees are concerned, the successful party is entitled to an indemnity, although this generally only covers a portion of the actual fees incurred (see above at question 1.5 for further details).
9.3 How can a domestic/foreign judgment be recognised and enforced?
Domestic judgments do not need to be formally recognised and can be enforced nationwide. As far as monetary claims are concerned, these are enforced pursuant to the DEBA. Non-monetary claims are enforced pursuant to the relevant rules of the SCCP.
Foreign judgment can be recognised and enforced in Switzerland pursuant to specific rules. The applicable rules depend on the country from which the judgment to be recognised stems, and whether Switzerland and this country have signed specific international conventions (such as the LC) or bilateral treaties. For instance, judgments stemming from a Member State to the LC are recognised and executed in Switzerland without any review of the substance of the judgment, save for very limited exceptions. If no particular convention or bilateral treaty applies, rules on recognition and enforcement of foreign judgments are contained in the PILA. Generally speaking, foreign judgments are recognised and enforced under the PILA if the basic procedural rules were respected during the proceedings abroad and no fundamental principles of Swiss law were breached. In addition to the rules of treaties and/or the PILA, the rules of the DEBA and the SCCP are also applicable depending on the nature of the judgment to be enforced (monetary vs non-monetary claim).
9.4 What are the rules of appeal against a judgment of a civil court of your jurisdiction?
Generally speaking, a first instance judgment can be appealed to the cantonal appeal court within 30 days from service (10 days in case of summary proceedings). The threshold of the residual value in dispute is a minimum of CHF 10,000. The appeal court can review both factual and legal elements and the appeal has generally suspensive effect.
An appeal against a judgment by the cantonal appeal court can be lodged with the Swiss Supreme Court. The remaining minimal value in dispute is CHF 30,000 (CHF 15,000 for labour or landlord-tenant law matters). No minimal value in dispute is requested if the appeal relates to a question of law of fundamental significance. An appeal to the Swiss Supreme Court does not have automatic suspensive effect. The Swiss Supreme Court reviews in principle only legal issues. The scope to review factual isues is extremely narrow, i.e. only if the lower court's judgment and factual findings are blatantly and obviously wrong or breached Swiss law.
10.1 Are there any formal mechanisms in your jurisdiction by which parties are encouraged to settle claims or which facilitate the settlement process?
Ordinary proceedings are generally preceded by mandatory conciliation proceedings (see above at question 1.3). During these proceedings, which are held on a without-prejudice basis, a conciliatory judge shall convene the parties to a conciliation hearing, during which a possible amicable settlement is discussed by the parties. Instead of conciliation proceedings, the parties can decide to undergo mediation proceedings. Even once conciliation proceedings have finished, throughout the proceedings judges can decide spontaneously or upon request of the parties to make another conciliation attempt.
11. ALTERNATIVE DISPUTE RESOLUTION
11.1 What methods of alternative dispute resolution are available and frequently used in your jurisdiction? Arbitration/Mediation/Expert Determination/Tribunals (or other specialist courts)/Ombudsman? (Please provide a brief overview of each available method.)
Arbitration, in particular international arbitration, has a long-lasting tradition in Switzerland, which is one of the main arbitration hubs worldwide. International arbitration is defined by Swiss law as arbitration in which at least one of the parties resided (or had its registered offices) abroad when the arbitration clause was entered into. Domestic arbitration is also possible, but is far less common. Mediation is traditionally used in Switzerland in family law matters and to some extent in minor criminal matters. Commercial mediation in Switzerland is not as widespread as in other jurisdictions, but is gaining traction. Expert determinations (in particular technical matters, for instance in M&A disputes concerning price adjustments) and referring to the Ombudsman (in particular in the banking sector) are other alternative dispute resolution methods available in Switzerland.
11.2 What are the laws or rules governing the different methods of alternative dispute resolution?
International arbitration is governed by chapter XII of the PILA, unless the parties decide to exclude this and instead use the rules on domestic arbitration contained in the SCCP. The SCCP does not provide any specific rules on mediation proceedings, only governing the relation between civil proceedings and mediation. The parties can therefore freely organise their mediation proceedings or chose available mediation rules, such as the Swiss Rules of Mediation of the Swiss Chamber's Arbitration Institution.
11.3 Are there any areas of law in your jurisdiction that cannot use Arbitration/Mediation/Expert Determination/Tribunals/Ombudsman as a means of alternative dispute resolution?
Concerning international arbitration, any "pecuniary dispute" pursuant to the PILA can be dealt with in arbitration proceedings. Domestic arbitration and mediation are available for any dispute the parties can freely dispose of. Pursuant to the case law of the Swiss Supreme Court, this is not the case for claims related to mandatory rules of labour law. Also, claims that affect an individual's personal status cannot be arbitrated (marriage, divorce, paternity, child adoption).
11.4 Can local courts provide any assistance to parties that wish to invoke the available methods of alternative dispute resolution? For example, will a court - pre or post the constitution of an arbitral tribunal - issue interim or provisional measures of protection (i.e. holding orders pending the final outcome) in support of arbitration proceedings, force parties to arbitrate when they have so agreed, or order parties to mediate or seek expert determination? Is there anything that is particular to your jurisdiction in this context?
Swiss state courts will assist any arbitral tribunal seated in Switzerland or parties in arbitration proceedings with a seat in Switzerland typically in relation to the constitution of an arbitral tribunal (appointment, removal), as well as with the execution of provisional measures by which a party does not abide voluntarily. State courts can also assist in the taking of evidence or for any other matters the parties or the arbitral tribunal may deem such assistance helpful. If one of the parties invokes the existence of an arbitration clause, the state judge shall reject his/her jurisdiction unless the arbitral clause is null and void, impossible to be fulfilled or the arbitral tribunal cannot be constituted for reasons attributable to the respondent. As far as mediation is concerned, no state court can force the parties to mediate, but can only invite the parties to do so.
11.5 How binding are the available methods of alternative dispute resolution in nature? For example, are there any rights of appeal from arbitration awards and expert determination decisions, are there any sanctions for refusing to mediate, and do settlement agreements reached at mediation need to be sanctioned by the court? Is there anything that is particular to your jurisdiction in this context?
Arbitral awards (both international and domestic) are binding and enforceable in Switzerland. Both domestic and international arbitral awards can be appealed before the Swiss Supreme Court. Parties to domestic arbitral proceedings can decide to appeal to the higher cantonal court instead of to the Swiss Supreme Court. In any event, the grounds for lodging such appeals are very limited: breach of ordre public (international awards); arbitrariness (domestic awards); breach of fundamental procedural rights; lack of jurisdiction (both international and domestic awards); and appeal on the costs of arbitration (only domestic). As of 1st January 2021, appeals to the Swiss Supreme Court can be drafted in English (in addition to national languages). Since mediation is not mandatory, there is no sanction related to refusal to mediate (unless the parties provided particular rules in this respect). A settlement reached during mediation is considered to be an out-of-court settlement and has the binding nature of a contract between the parties. If mediation is conducted within the framework of civil judicial proceedings, the settlement can be ratified by the competent judge. In this case, the settlement would have the effect of a final judgment. The same applies to settlements reached during conciliation proceedings.
11.6 What are the major alternative dispute resolution institutions in your jurisdiction?
The main and most known mediation and arbitration institution in Switzerland is the Swiss Chamber's Arbitration Institution, (Hyperlink)
This institution provides for arbitration rules (Swiss Rules on International Arbitration) and mediation rules (Swiss Rules of Mediation), as well as related services.
Other private institutions offer mediation services, such as:
- The Swiss Chamber of Commercial Mediation, (Hyperlink)
- The Swiss Mediation Association, (Hyperlink)
This article was first published in the ICLG - Litigation & Dispute Resolution 2021.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.