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Litigation

Procedure

What is the procedure for filing a product liability claim before the courts in your jurisdiction?

There is no special procedure for filing a product liability claim as such claims are filed in the same manner as other claims. Before filing an action with the court, the claimant must file a reconciliation request with a justice of peace who then attempts to facilitate a settlement between the parties. If no settlement can be reached, the claimant may file its action with the court. Actions are filed by way of written brief.

Generally, the prayers for relief request the payment of quantified damages. However, the claimant can also request payment for unquantified damage if it is impossible or unreasonable to quantify the amount of the damage at the start of the proceedings. In such a case, the plaintiff must indicate a minimal amount as a provisional value in dispute and must quantify its damages at a later point in the proceedings when evidence has been taken.

Interlocutory motions

Can the court issue interlocutory orders or judgments in product liability cases? If so, what rules and procedures apply?

In principle, the court can issue interlocutory decisions if the claimant can establish that the requirements for such measures are met. In product liability cases, the precautionary taking of evidence by a civil court may be of use. However, court practice has established strict conditions for such a measure to be granted.

Pre-trial disclosure

What pre-trial disclosure/discovery mechanisms are available in product liability cases, if any?

There is no pre-trail disclosure or discovery mechanism in Swiss civil procedure. Depending on the circumstances, a potential claimant may file a request under the Data Protection Act, which in some cases may offer some ‘discovery through the backdoor’. In addition, parties can apply for the precautionary taking of evidence (see above), but there are strict conditions for this measure to be granted.

Evidence standards

What evidence is accepted to support claims in product liability cases? What formalities apply to evidence submission?

In essence, all means of evidence are accepted to support product liability cases, including:

  • witness testimony;
  • documentary evidence;
  • inspection; and
  • court-appointed expert opinions.

The following must be filed along with written briefs:

  • documentary evidence that a party wishes to rely on;
  • indication of witnesses to be used; and
  • requests to the court to appoint an expert or to arrange for an inspection.

It should be noted that witnesses are examined by the court and there is no cross-examination. If a specific and relevant document is not provided that a party wishes to rely on, the opposing party may request the court to order that the document is provided.

Expert evidence

Under what circumstances will the court appoint an expert to assist it in examining the merits of the case? What rules and procedures apply?

The court may seek an opinion from one or more experts, at the request of a party or ex officio. The court will do so only if it considers an expert opinion necessary to prove relevant facts that are disputed by the parties.

The court instructs the expert and submits the relevant questions to them. The parties are given an opportunity to ask additional questions or to have the questions modified. The court can order that the expert submit their opinion in writing or present it orally. It may also summon the expert to the hearing to explain their written opinion. The parties are given the opportunity to ask for explanations or to put additional questions to the expert. However, cross-examination of the expert is not permitted.

Can the parties rely on expert witness testimony to support their claims? If so, what rules and procedures apply?

Pursuant to Article 175 of the Swiss Civil Procedure Code, the court may ask an expert witness questions to assess the facts. The expert witness must have special expertise in the subject so that the court can examine them not only with regard to the facts, but also on their assessment of the facts. However, an expert witness cannot replace an expert opinion. In the event of an expert witness having an interest in the outcome of a case, the Swiss Federal Supreme Court holds that the witness must not be asked to assess the facts (cf BGE 94 I 417). In contrast to an expert, the expert witness is not subject to an appointment procedure. Further, an expert witness is liable to prosecution only for giving false testimony (Article 307 of the Swiss Criminal Code (SCC)) and not for giving a false expert opinion (Article 320 of the SCC).

Class actions

Are class actions or any other collective proceedings available for product liability claims in your jurisdiction? If so, what is the procedure for their formation and what benefits do they afford claimants? Are class actions formed on an opt-in or an opt-out basis?

There are no real collective redress procedures in Switzerland. However, it is possible to jointly bring several claims (eg, by a number of claimants filing their claims together when there are similar facts and legal grounds) in one proceeding or by way of an assignment of the individual claims to a claimant party. However, this is cumbersome and rarely done.

The Federal Council has recently published a proposal for certain amendments to the Civil Procedure Code which would provide for collective redress mechanisms, but it remains to be seen whether they will be adopted and if so, in what form and to what extent.

Appeals

What rules and procedures govern appeals of court decisions?

Apart from the specialty of the commercial courts that exist in some but not all cantons, the Swiss civil court system essentially provides two appeal opportunities:

  • from the court of first instance to the cantonal superior court; and
  • from the cantonal superior court to the Swiss Federal Supreme Court.

Depending on the type of appeal, the rules and procedures vary. Generally, the legal remedies against a court decision can be classified as:

  • ordinary remedies that suspend the legal effect of a decision and its enforceability; and
  • extraordinary remedies that suspend the legal effect only if ordered by the court.

The most relevant and only ordinary remedy is the vocation remedy (Article 308 of the Civil Procedure Code), which is directed against final and interim decisions of a first-instance court and decisions on interim measures of a first-instance court. Such an appeal may be filed on grounds of incorrect application of the law or incorrect establishment of the facts, in writing and within 30 days (10 days in summary proceedings) from service of the decision. Unless the appeal is obviously inadmissible or unfounded, the appellate court serves the appeal on the counterparty for its answer, which must be submitted within 30 days (10 days in summary proceedings).

As regards extraordinary remedies, the most pertinent is the complaint remedy (Article 319 of the Civil Procedure Code). Further extraordinary remedies are:

  • the revision remedy (Article 328 of the code);
  • the explanation remedy (Article 334 of the code); and
  • the rectification remedy (Article 334 of the code).

The complaint remedy is admissible against final and interim decisions and decisions on interim measures of a first-instance court which are not subject to an appeal (ie, vocation remedy), as well as other decisions and procedural rulings if the law provides so or if such decisions or rulings threaten to cause harm that cannot easily be made good.

The admissible grounds for a complaint remedy are an incorrect application of the law or an obviously incorrect establishment of the facts. It must be filed within 30 days (unless a summary proceeding decision or procedural ruling is being appealed where the deadline is generally 10 days). The appellate court may hold hearings and order further exchanges of briefs and the taking of evidence. It may:

  • confirm a challenged decision;
  • render a new decision; or
  • remit the case to the court of first instance.

Statute of limitations

What is the statute of limitations for filing product liability claims?

Claims under the Product Liability Act (SR 221.112.944) become time-barred three years from the date on which the injured party has or should have become aware of the damage, the defect and the manufacturer (Article 9 of the Product Liability Act). If a product liability claim is based on contractual liability, the statute of limitation is two years from the date of the delivery of the defective product. A product liability claim may also be brought on tort pursuant to Article 41 of the Swiss Code of Obligations, which provides for a relative statute of limitation of one year from the date on which the injured party became aware of the damage and the liable person and an absolute statute of limitation of 10 years from the date of the damaging event, irrespective of the injured party's knowledge of the damage (Article 60 (1) of the code).

Timeframe

What is the typical duration of proceedings in product liability cases?

Typically, a decision of the court of first instance is rendered within one to two years from the filing of the action. However, the duration depends on the parties' conduct, including:

  • the requests for extension of deadlines;
  • the filing of unrequested briefs; or
  • the taking of evidence.

Appellate proceedings before the court of second or last instance generally take another one to one-and-a-half years.

Costs, fees and funding

Can the successful party to the litigation recover court and attorneys’ fees and any other related expenses from the losing party? If so, what rules and procedures apply?

In Switzerland, the ‘loser pays’ principle applies. The costs follow the event. In other words, the successful party is entitled to compensation for its legal costs in accordance with a tariff which is primarily based on the amount at stake. The tariffs vary between cantons. The compensation granted does not necessarily cover the real costs incurred by a party; depending on the amount at stake, the amount payable as compensation for legal fees can be higher or lower than the actual costs incurred.

Some cantons take effective costs into account, but it is dependent on the canton and the respective court practice whether the court requests information on the legal fees incurred. For example, in Zurich, the court would not normally ask for costs statements, but would simply fix the amount of the compensation for legal costs based on the amount at stake in accordance with the tariff. The losing party must also bear court costs.

The allocation of procedural costs is regulated by Article 104 of the Swiss Civil Procedure Code. Procedural costs consist of court and party costs. Court costs are determined and allocated by the court ex officio; while party costs are awarded on request and in accordance with the relevant tariff, the parties may file their cost notes.

Pursuant to Article 106, Paragraph 1 of the Civil Procedure Code, both court and party costs must be borne by the unsuccessful party. The court does not reimburse an advance payment on court costs made by the successful party to such party, but only grants this party a compensation claim against the unsuccessful party, so that the successful party bears the risk that the costs may not be collected (Article 111, Paragraph 2 of the Civil Procedure Code).

If no party succeeds entirely, the costs are allocated in accordance with the outcome of the case. Further, unnecessary costs are charged to the party that caused them, independently of whether it was the losing party (Article 108, Civil Procedure Code).

What rules and restrictions (if any) govern contingency fee arrangements?

No win, no fee and contingency fee agreements are not permitted in Switzerland. It is possible to agree on a success fee element in the sense that counsel would receive a top-up fee if successful, but the fee that is payable in any case (regardless of the outcome) must at least cover any and all costs of counsel and must contain some profit element. However, in a widely criticised decision, the Swiss Federal Supreme Court established certain restrictions on success fee element arrangements, although the extent of the restrictions has not been made clear.

Is third-party litigation funding permitted in your jurisdiction? If so, do any rules or restrictions apply?

Third-party funding is permitted; provided that the party to the proceedings is directly funded by a third party, no limits apply. However, third-party funding may interfere with the independency rule for counsel mandated to represent their client’s interest. In this case, the rules of professional conduct may prohibit counsel from entering into a correspondingly funded client relationship.

Is legal aid (ie, public funding) available to claimants in product liability cases? If so, what rules, restrictions and procedures apply?

A person is entitled to legal aid if they do not have sufficient financial resources and if their case is not devoid of any chance of success. If legal aid is granted, the party is exempt from the obligation to pay an advance on court costs or to provide security for legal costs. The individual is also exempt from court costs and has the right to be allocated a legal representative.

If a party with legal aid is unsuccessful, the court costs and the costs for their legal representative are paid by the canton in question. However, legal aid does not relieve the party from paying the legal costs of the opposing party in case of defeat. A party benefiting from legal aid has to reimburse the costs as soon as they are in the position to do so.

In order to obtain legal aid, an individual must apply in a formal proceeding which generally precedes the main proceeding. In this legal aid proceeding, the applicant must disclose their financial situation and must state their position on the merits of the case. In the proceeding, the counterparty is also heard in case the legal aid would relieve the applicant from the obligation to provide security for the legal costs of the counterparty. In the proceeding for legal aid, no court costs are imposed on the applicant. If legal aid is denied, the applicant may appeal.

Settlement

What rules and procedures govern the settlement of product liability cases?

There are no peculiar rules or procedures with regard to the settlement of product liability cases. Generally speaking, many cases are terminated by way of settlement, that is:

  • out of court;
  • in court (so that the settlement is on the court’s record and the court issues a corresponding termination order);
  • as result of a reconciliation before the justice of peace; or
  • as result of mediation.

In the case of a court settlement, the court terminates the proceedings based on the settlement and the settlement takes full legal effect and is enforceable.

How common are settlements in product liability cases?

Settlements in product liability cases are common. Swiss producers generally prefer to settle claims in a confidential manner, in order to avoid a court decision that is, at least in principle, open to the public. This is also a reason why there are few court decisions on product liability claims.

Alternative dispute resolution

Are any alternative dispute resolution (ADR) methods required or advised before or in lieu of proceeding with litigation?

Before filing an action with the court, the claimant must institute a reconciliation proceeding before the justice of peace pursuant to Article 197 of the Civil Procedure Code. There are certain exceptions where no reconciliation proceeding is required (eg, in cases that fall within the jurisdiction of a commercial court). If an attempt at reconciliation is unsuccessful, the claimant may file its action with the court.

The parties may agree to replace the reconciliation procedure by mediation pursuant to Article 213 of the Civil Procedure Code. The parties may enter into mediation at any stage during the reconciliation or ordinary proceeding on the court's recommendation or at their joint request. Moreover, the parties may mutually agree to waive the attempt at reconciliation in financial matters when the disputed amount is at least Sfr100,000.

How commonly is ADR used in relation to product liability cases in your jurisdiction?

Settlements as a result of negotiations between parties are common, reconciliation proceedings are seen before the justice of peace and there is a tradition that courts facilitate settlement between parties if possible. Consequently, mediation is not commonly used in Switzerland (apart from in family law matters). However, as outlined above, it is common for parties to enter into direct negotiations on the disputed matter without the assistance of a court or mediator.

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