On 2 March 2018, the Swiss Federal Council initiated the consultation phase regarding selected amendments to the Swiss Civil Procedure Code (CPC). The Preliminary Draft includes concrete proposals for the strengthening of collective redress in Switzerland.
Collective redress under existing Swiss procedural law
Under the current CPC, associations and other organizations may rely on so-called group action rights to bring non-monetary claims (cease and desist orders, declarations of unlawful conduct) in order to safeguard collective interests. To date, group action rights do not include the right to raise monetary claims (e.g. for damages or reparations).
Collective redress under the Preliminary Draft
Pursuant to the annotations to the Preliminary Draft, the future enforcement of claims regarding mass and dispersed damages shall be facilitated by implementing the following two primary measures:
First, group action rights shall allow for the submission of monetary claims, such as collective claims for damages or surrender of profits. However, such collective claims require a written mandate by the aggrieved persons instructing the association to initiate the appropriate proceedings (so-called "opt in").
Second, based on a similar model in the Netherlands, the Preliminary Draft proposes the introduction of collective settlement proceedings. Collective settlements allow the party accused of a legal violation to enter into a comprehensive agreement regarding the consequences of such violation with an organization authorized to bring a group action. If the collective settlement is approved and declared binding by the competent court, it becomes binding on all involved parties, unless they declare their withdrawal from the collective settlement within a certain time period (so-called "opt out").
Further amendments under the Preliminary Draft
Apart from the issues set out above, the Preliminary Draft provides for further selected modifications to the CPC, including a 50% reduction of the advance on court fees payable by the plaintiff as well as an in-house privilege in civil proceedings.
The consultation phase continues until 11 June 2018. We will provide an overview on all proposed modifications to the CPC in one of our next firm newsletters.