Gathering Evidence in Aid of Foreign Litigation Guide |
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Switzerland |
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(Europe)
Firm
Pestalozzi
Contributors
Thomas Rohner |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Yes, Switzerland is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”) Moreover, Switzerland is a party to the Hague Convention of 1 March 1954 on civil procedure ("Hague Civil Procedure Convention"). Furthermore, there are some bilateral treaties in place. Further, a Swiss court applies its own law, i.e. the Swiss Civil Procedure Code ("SCPC") as to the methods and procedures to be followed. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | In general, requests gathering evidence require approval (with some limited exemptions). Under the Hague Evidence Convention, generally, the central cantonal authority of the place where the request is executed is the appropriate forum. The request could also be sent to the Swiss Federal Office of Justice ("FOJ"), which will transfer the request to the competent cantonal authority. Based on the Hague Civil Procedure Convention, the foreign judicial authority must usually send its application via diplomatic channels to the FOJ, which, in turn, will send it to the competent cantonal authority. A direct-acting of a party or foreign authority in Switzerland without proper Swiss approval might result in criminal sanctions. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Under the SCPC, testimony, physical records, inspection, expert opinion, written statements, questioning and statements of the parties are possible types of information that could be sought (Article 168(1) SCPC). However, one could, in principle, request the application of the requesting state's law. The request should generally be met unless the form is incompatible with the law of the state addressed or if its application is not possible due to practical difficulties. Accordingly, affidavits and cross-examination should generally be possible in Switzerland. |
| Who bears the burden of showing whether any privileges apply? | The person that relies on a privilege. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No, however, the person to be questioned or who is requested to produce documents may claim to be exempt or prohibited from providing evidence, either on the basis of the law of the state addressed or of the law of the requesting state. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Generally, hearings may be conducted by videoconference under the Hague Evidence Convention and in exceptional circumstances also under the Hague Civil Procedure Convention. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | Yes. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | Voluntarily providing evidence in a foreign proceeding might be possible under limited circumstances. However, the individual case needs to be carefully analyzed before taking such a decision. A prior request to a Swiss authority is necessary for any event if non-compliance with the non-giving of evidence would result in sanctions that are not of a procedural nature (e.g. criminal sanction due to contempt of court). In case of non-compliance, criminal sanctions might be enforced in Switzerland. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Under Chapter 12, Swiss Private International Law Act, and applicable to international arbitration proceedings, an arbitral tribunal with a seat abroad or a party to foreign arbitration proceedings with the consent of the arbitral tribunal may request the Swiss state court where evidence is to be taken to participate (Article 185a(2) Swiss Private International Law Act). This means that an arbitral tribunal seated abroad or a party to foreign arbitration proceedings may directly access the Swiss state court without application of the Hague Evidence Convention or Hague Civil Procedure Convention. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes.
Yes, Switzerland is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”)
Moreover, Switzerland is a party to the Hague Convention of 1 March 1954 on civil procedure ("Hague Civil Procedure Convention"). Furthermore, there are some bilateral treaties in place.
Further, a Swiss court applies its own law, i.e. the Swiss Civil Procedure Code ("SCPC") as to the methods and procedures to be followed.
In general, requests gathering evidence require approval (with some limited exemptions). Under the Hague Evidence Convention, generally, the central cantonal authority of the place where the request is executed is the appropriate forum. The request could also be sent to the Swiss Federal Office of Justice ("FOJ"), which will transfer the request to the competent cantonal authority.
Based on the Hague Civil Procedure Convention, the foreign judicial authority must usually send its application via diplomatic channels to the FOJ, which, in turn, will send it to the competent cantonal authority.
A direct-acting of a party or foreign authority in Switzerland without proper Swiss approval might result in criminal sanctions.
Under the SCPC, testimony, physical records, inspection, expert opinion, written statements, questioning and statements of the parties are possible types of information that could be sought (Article 168(1) SCPC).
However, one could, in principle, request the application of the requesting state's law. The request should generally be met unless the form is incompatible with the law of the state addressed or if its application is not possible due to practical difficulties. Accordingly, affidavits and cross-examination should generally be possible in Switzerland.
The person that relies on a privilege.
No, however, the person to be questioned or who is requested to produce documents may claim to be exempt or prohibited from providing evidence, either on the basis of the law of the state addressed or of the law of the requesting state.
Generally, hearings may be conducted by videoconference under the Hague Evidence Convention and in exceptional circumstances also under the Hague Civil Procedure Convention.
Yes.
Voluntarily providing evidence in a foreign proceeding might be possible under limited circumstances. However, the individual case needs to be carefully analyzed before taking such a decision. A prior request to a Swiss authority is necessary for any event if non-compliance with the non-giving of evidence would result in sanctions that are not of a procedural nature (e.g. criminal sanction due to contempt of court).
In case of non-compliance, criminal sanctions might be enforced in Switzerland.
Under Chapter 12, Swiss Private International Law Act, and applicable to international arbitration proceedings, an arbitral tribunal with a seat abroad or a party to foreign arbitration proceedings with the consent of the arbitral tribunal may request the Swiss state court where evidence is to be taken to participate (Article 185a(2) Swiss Private International Law Act).
This means that an arbitral tribunal seated abroad or a party to foreign arbitration proceedings may directly access the Swiss state court without application of the Hague Evidence Convention or Hague Civil Procedure Convention.