Litigation in Switzerland
When I think of Switzerland, I think about the country’s famous mountains, chocolates, clocks, cheese, and banks. But I don’t think about electronic filing. And it turns out that is partly because many litigators there do not use the country’s electronic filing system and, instead, file papers in hard copy. This is just one of the several interesting things I (and soon you) learned while speaking with Dr. Bernd Hauck, a partner at Kellerhals Carrard in Basel, about litigation in Switzerland.
Why should you continue reading this post about litigation in Switzerland?
You are torn between reading about litigation between different countries in conflict and just want to read an interview about somewhere neutral.
You’ve read my interviews with lawyers in French, German, and Italian speaking countries, and are interested in an interview about law in a country where all three languages are spoken.
Switzerland is an expensive place and this blog post will give you a little bit of the Swiss experience for free.
Dr. Bernd Hauck is a partner at Kellerhals Carrard in Basel. This interview has been lightly edited.
Can you tell me about the kinds of disputes you handle in your legal practice?
I focus on construction disputes in B2B relationships.
The objects of the construction in my cases are rather complex, e.g. new buildings for the state, residential buildings for investment funds, buildings for pharmaceutical production, as well as pharmaceutical production facilities.
What type of clients do you generally represent in disputes?
I represent principals, as well as contractors, engineers, and subcontractors. In general, I do not represent private clients. My clients are either mid-sized businesses (e.g. engineering companies with over 50 employees) or large businesses (e.g. from the pharmaceutical industry).
Besides Microsoft Office, what software do you use in your practice?
We use different software solutions.
ELLE is a cloud-based software which allows us to enter new mandates and clients, open new documents and save them sorted in mandate folders. It also gives us the possibility to search previous documents with a deep search (which is comparable to a Google function). ELLE is also used for recording hours, billing, and invoicing. ELLE is linked with Microsoft’s Sharepoint.
Our associates use the application PushCap on their smartphones reporting their availability to the partners. Based on this feedback, work is attributed to the associates.
For the drafting of submissions (including the handling of annexes thereto) we have the software Octoiur.
Furthermore, we use Litera Compare to compare different versions of texts. Litera is added as additional folder to MS Word.
In the first quarter of 2024, my firm will introduce an AI solution which will be directly integrated into ELLE. The scope of this solution is still to be defined. I understand, that the solution will for example enable us to create summaries of complex documents for our clients.
What books and websites do you use for legal research?
We often use the databases Swisslex, Weblaw, and Legalis, which contain legal commentary and case law and are equipped with efficient search functions. The website of the Swiss Supreme Court is also helpful. Furthermore, we also like to consult Practical Law for international cases.
In addition, we still have a decent library with conventional books.
Image credit: https://de.wikipedia.org/wiki/Bundesgericht_(Schweiz)#/media/Datei:Federal_Supreme_Court_of_Switzerland,_2020_(cropped).jpg
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
Although the Swiss legislature allows for the electronic filings of submissions, this has so far not become common practice. Electronical filings require the use of officially accredited platforms and digital signatures. Some of the courts offer this possibility, others don’t.
In addition, there are different restrictions.. For example, in some cases, the allowed size of attachments is rather low. We don’t want to face these possible issues at the last day of a deadline. Therefore, our submissions are still sent on paper.
Are there courts in Switzerland that focus solely on commercial cases?
Commercial courts are specialized state courts for commercial disputes, which are usually presided over by a professional judge and staffed judges from the industry concerned in the specific case. Such courts can be found in four of the 26 Swiss cantons: Zürich, Bern, Aargau and St. Gallen. They are competent in case of a commercial activity of one of the parties if the amount in dispute is at least 30,000 Swiss francs and if, in addition, the parties are registered in a (Swiss or foreign) commercial register.
The other cantons don’t have commercial courts. Therefore, in most of the cantons commercial cases are heard and decided by ordinary civil courts after undergoing a mandatory conciliation procedure. In ordinary civil courts, judges usually decide on all civil law cases, both commercial cases and other disputes.
There are multiple languages spoken in Switzerland. In what language do court proceedings take place?
There are four official languages in Switzerland – German, French, Italian and Romansch. Depending on the canton, the primary language used may vary. Court hearings are generally held in the main language of the canton in which the court is located. Multilingual cantons have special rules on the applicable language of the submissions and the oral proceedings.
In a revision of the Swiss Code of Civil Procedure (“CCP”), it was decided that in the future (probably as per 1 January 2025) the cantons will be given more flexibility in relation to the language of the proceedings.
According to the revised CCP, the cantons will be able to create international commercial courts or specialized courts or court chambers for international commercial disputes. The cantons will be able to provide that parties, at least one of which has its domicile, habitual residence or registered office abroad, may agree on the jurisdiction of the commercial court in disputes with an amount in dispute of at least 100,000 Swiss francs relating to commercial activities. The cantons will then be able to provide that, at the request of all parties, another national language or - in international commercial disputes - English may be used in the proceedings. If the proceedings before the lower court are conducted in English, legal documents will also be able to be drafted in English before the Swiss Federal Supreme Court.
Who decides the facts in a commercial case? Is it a judge or a jury?
There are no trials by jury in Switzerland. A collective of judges decide the facts and the laws in commercial cases.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
Construction law cases are rather complex, especially when it comes to defects, tacit change orders and concurring delays. In addition, according to the Swiss Code of Civil Procedure, a Plaintiff must have presented all the facts and evidence in his second submission at the latest. Therefore, first submissions (statement of claims, in general) in my practice area tend to be lengthy: I would between 50 and 200 pages.
Generally speaking, how long does it take for a case to go from complaint to judgment?
The duration of proceedings at first instance strongly depends on the type of proceedings and the area of law. In various areas of law (e.g. labour law, rental law, or family law), procedures are faster.
Commercial disputes usually take two years to be decided by the court of first instance. This also includes the time for a (usually) mandatory conciliation procedure. The two years are only a rule of thumb. Especially if expert opinions are required, much more time (e.g. three to four years) might be needed.
However, construction law cases are often ended with a settlement before a judgement is rendered.
Generally speaking, how is evidence exchanged between the parties before trial? Do you get to interview the opposing witnesses before the trial?
The parties submit the submissions, including the exhibits, to the court. The court sends all submissions and exhibits to the opposing party, that then becomes aware of the evidence. At the court hearing, new evidence can only be introduced into the proceedings under very restrictive conditions.
In civil court disputes, witnesses are only examined by the court. Prior contact to witnesses is prohibited. The role of the parties in the taking of evidence is rather reduced. Additional questions to the witnesses might be asked, however, through the moderation of the judge. There are no cross-examinations by the parties.
If you win, does the other side reimburse your attorneys’ fees?
The losing party will generally be ordered to compensate the successful party’s procedural costs. Procedural costs include the court’s costs, as well as the winning party’s costs which in turn include the costs of professional representation. If a party is successful only in part, a proportionate payment is ordered.
The amount of the winning party’s costs is determined by the court in accordance with the cantonal legislature on lawyers’ fees and costs, which sets a tariff framework. The reimbursed costs, however, are often considerably lower than the fee paid to the successful party to its attorneys in general on a hourly fee basis.
Are Swiss courts open to the public? Can ordinary people watch a commercial trial?
The Code on Civil Procedure generally requires civil law court proceedings and the delivery of judgments to be public.
Copies of judgments of the second instance courts and the Federal Tribunal can be requested by anyone and are frequently published online (in anonymized form). Court orders as well as briefs and documents filed by the parties and the court's deliberations are kept confidential. The court is authorized to partially or entirely exclude the public from certain proceedings due to public interest or, upon request of a party, in the case of important party interests (e.g. trade secrets).
Family matters are always private with no public access. Pre-trial conciliation hearings and judicial settlement hearings are not open to the public.
Do you believe that Swiss courts have a particular strength for resolving commercial disputes? How about a weakness? What are they?
I have mixed feelings in this regard. On the one hand, I had very good experiences with some courts, especially with some commercial courts, that knew all the details of the cases and presented a first assessment; this is a compulsory requirement if you want to reach a settlement in a complex case.
On the other hand, I also experienced judges that were overwhelmed by the complexity of the case and the substance. I don’t blame them. Especially if a small local court (whose daily business are divorces, labor law, rental law etc.) is all of a sudden confronted complex case, e.g. a case of engineering law with international implications, it will probably have difficulties understanding the substance of the case.
In general, I would say that Swiss courts do a good job. They will always try if they can’t reach a settlement and even if the parties weren’t able to settle before the lawsuit, a settlement proposal by a judge is often easier to accept.
How often do you go to the courthouse?
In my area of practice, the bulk of the work is done by written submissions. You might write hundreds of pages of submissions during three to fours years and there is only a half day hearing at the end before the judgment is rendered. Therefore, I am not in the courthouse that often; probably 2-3 times per year.
This is different other areas of law, like rental law or labor law.
Are there any good television shows or movies about Swiss litigation?
Not to my knowledge.