Progressing the case

Typical procedural steps

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

A typical sequence of procedural steps is as follows:

  • conciliation request, followed by a conciliation hearing (where such is mandatory);
  • written statement of claim;
  • written statement of defence;
  • a second round of briefs (reply and rejoinder); and
  • the main hearing: the court hears witnesses and takes evidence, and the parties then comment on the evidence taken.

The court may, after the first exchange of briefs, hold an instruction hearing for settlement talks. In particular, the commercial courts will often take this approach, and a significant portion of cases are settled at this stage.

Bringing in additional parties

Can additional parties be brought into a case after commencement?

Yes. Third parties can be brought into a case or intervene in a case, primarily as follows:

  • third-party (principal) intervention: a person who claims to have a better right to the object of a dispute may bring a claim directly against both parties (article 73 ZPO);
  • third-party accessory intervention: a person who has a credible interest in a pending proceeding may intervene in support of a party and raise all defences or affirmative positions in support of this party (article 74 ZPO);
  • third-party notice: a party may give notice to a third party that it may want to take recourse against in the case of a loss in the main proceedings (article 78 ZPO); and
  • third-party action: a party may file an actual action against such third party against which it takes recourse in the case of a loss in the main proceedings (article 81 ZPO).

In addition, the court has the option of consolidating claims against or by other parties (article 125 ZPO).

Consolidating proceedings

Can proceedings be consolidated or split?

Yes. If it simplifies the proceedings, the court may order the separation of jointly filed actions or the joinder of separately filed actions. The court may also separate the counterclaim from the main claim proceedings (article 125 ZPO).

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?

According to article 8 Swiss Civil Code (ZGB), the burden of proving the existence of an alleged fact rests on the person who derives rights from that fact, unless the law provides otherwise.

The court is free on how it assesses the evidence that is taken (article 157 ZPO), albeit article 168 ZPO conclusively lists the admissible means of evidence:

  • witness testimony;
  • documentary exhibits;
  • inspection;
  • expertise;
  • written statements requested by the court; and
  • questioning or evidentiary statements of parties.

In principle, save where the law or case law provides otherwise, strict or full proof is required, meaning that the court must, based on objective grounds, be convinced of the correctness of the allegations raised. Absolute certainty is not required; it is sufficient that the court has no serious doubts as to the correctness of the alleged facts or that any remaining doubts are minor.

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

In principle, save where the law provides otherwise, the court is bound to the prayers for relief of the parties (article 58 ZPO); the court cannot award or order more than or something other than specifically requested by the parties.

Evidence

How is witness, documentary and expert evidence dealt with?

There is a strong emphasis on documentary evidence over oral evidence. With regard to witness evidence, the witnesses are questioned by the court rather than cross-examined by the parties and their counsel (see question 38), and the court would typically only admit a limited number of additional questions to be put forward by the parties.

It should also be noted that contacts between counsel and potential witnesses are admissible under specific limitations only. They may potentially taint the evidentiary value of the witness. In this vein, written witness statements are not admissible evidence.

Expert opinions of a party are considered to be mere party allegations. Only court-appointed experts are considered as expertise in terms of evidence.

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

Disclosure or discovery as found in the UK or US do not exist in Switzerland, and therefore large volumes of evidence are rarely a problem. Where a judge has the necessary technical or commercial expertise to review and evaluate such evidence, he or she can make the necessary determinations. However, the court must disclose the measure of any technical or commercial expertise of the court to the parties and allow them to comment (article 183, paragraph 3 ZPO). This can, in particular, occur before the commercial courts, which have specialist lay judges.

Otherwise, the court will generally appoint an expert to deal with matters requiring special commercial or technical expertise.

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?

Witnesses in Switzerland can be compelled to give evidence to a foreign court provided such request is made in the correct form. Switzerland has entered into several multilateral and bilateral 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 and the Hague Convention relating to Civil Procedure of 1 March 1954. If no other treaty applies, Swiss courts will apply the Hague Convention relating to Civil Procedure by default (article 11(a) IPRG).

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

It should be noted that pursuant to article 271 of the Swiss Criminal Code (StGB), it is a criminal act to undertake activities on behalf of a foreign state (including foreign state courts) without authorisation where such acts are the responsibility of a public authority or public official. Switzerland deems the taking of evidence in the territory of Switzerland to be within the sole purview of the Swiss courts. Accordingly, foreign court officials or lawyers acting in foreign court proceedings must avoid taking evidence in Switzerland outside the formal channels.

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

Witness evidence is taken by the court, with the parties limited to submitting additional questions or, with leave of the court, posing such questions directly. There is no cross-examination as such. The court can, however, order a confrontation of the witnesses or parties (article 169 et seq ZPO).

If the authenticity of a document is disputed by a party with sufficient reasons, the party relying on that document is required to prove its authenticity (article 178 ZPO). Such proof can, for example, be in the form of an expert report.

Time frame

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

First instance proceedings typically last 10 to 18 months.

Expedited summary proceedings are available for clear cases (ie, where the facts are undisputed or immediately provable and the legal situation is clear: article 257 ZPO). Moreover, summary proceedings are also available as part of the debt enforcement proceedings in the case of monetary claims based on a signed recognition of debt such as a contract (article 82 SchKG).

Gaining an advantage

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

See question 23.

A party may request that proceedings be limited to individual issues, which can be formal or substantive in nature (article 125 ZPO).

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?

Litigation funding can help a claimant pass the comparatively high cost barriers in proceedings before Swiss courts.

The involvement of the funder does not have to be disclosed. Depending on the agreement between the funder and the claimant, the funder may exercise some control over the proceedings, which may pose a risk of conflict. Should a conflict of interest arise, a lawyer owes his or her professional and fiduciary duties to the client (ie, the party to whom the claim belongs) and not the funder.

Since the interests of the funder are typically of a solely economic nature, the funder usually does not have a sufficiently justified legal interest to constitute itself as an accessory party. There might, however, be a change of party if the funder acquires the claim in question before or during the trial.

If the defendant wins the case, only the claimant is liable for the reimbursement of the costs awarded to the defendant. The defendant has no direct recourse against the funder.

Impact of technology

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

With the introduction of the ZPO in 2011, electronic filing was introduced across Switzerland before all civil courts. In practice, electronic filing has not taken off, and the bulk of submissions are still made on paper. However, the courts have started to request receiving submissions and exhibits also in electronic form.

The Swiss courts have realised that more must be done and in February 2019, under the leadership of the Swiss Federal Department of Justice, launched the ambitious project called Justitia 4.0. By 2026, courts and parties will be able to exchange documents via a central portal and to access court files electronically, which should ultimately lead to an electronic case file.

Contrary to the Swiss Code on Criminal Procedure, which explicitly envisages that testimony may be given by video link, the ZPO has no similar provisions. However, considering that the court can dispense with the requirement that a witness appear in person, this suggests that testimony by video link remains available. Guidelines issued by the Federal Office of Justice on International Judicial Assistance in Civil Matters (third edition 2003, update of January 2013) mention that cross-border video links may be admissible within the strictures of the Hague Evidence Convention. It should be noted that outside mutual legal assistance proceedings such as the Hague Evidence Convention, cross-border video links may fall foul of Switzerland’s blocking statutes (article 271 StGB; see question 37).

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?

Administrative proceedings can be conducted before, in parallel with or after criminal proceedings, depending on the field of law. If there are parallel proceedings, the affected party may be confronted by the dilemma of whether it should fulfil its obligations to cooperate under administrative law or exercise its right to refuse to give evidence under criminal law. Pursuant to the nemo tenetur principle, the defendant has the right to remain silent without being sanctioned for it, and statements made in administrative proceedings can only be used in parallel criminal proceedings if they have been taken in compliance with the principles of criminal procedural law. However, this principle does not apply without exception (ie, the statements may still be used in exceptional circumstances). A possible solution to avoid this dilemma would be to file an application for suspension of administrative proceedings until criminal proceedings are over.

Civil proceedings can take place before, in parallel with or within criminal proceedings. If appropriate, a civil court can stay or suspend proceedings, in particular if their outcome depends on the outcome of other proceedings; however, in practice civil proceedings are rarely stayed because of parallel criminal proceedings. A civil court is neither bound by an acquittal nor by a verdict of guilty of the criminal court. If, however, the criminal court has already decided upon civil claims, the civil court is bound by that verdict. If a party is involved in both criminal and civil proceedings, it may, provided it has access to the files of the criminal proceedings, use them in civil proceedings. This is a common strategy to obtain information that could otherwise (with the means of a civil procedure) not be obtained.

Prosecution is the exclusive competence of the state authorities: there is no private prosecution as such in Switzerland. However, a victim of a criminal offence can bring civil claims within criminal proceedings. This can be advantageous for the claimant, since in criminal proceedings the facts are established ex officio, which relieves the party of the burden of proof. Furthermore, criminal proceedings are often dealt with more quickly than civil proceedings. In practice, however, the criminal courts would tend to refer complex civil lawsuits to the civil courts.