Overview

1 Describe the general organisation of the court system for civil litigation.

The organisation is governed by cantonal law (article 3 et seq of the Swiss Civil Procedure Code (CPC)). Generally, each canton has a conciliation authority and a first and second instance court. Decisions of the last cantonal instance are appealable to the Federal Supreme Court if certain requirements are met (article 72 of the Federal Supreme Court Act (FSCA)).

In principle, civil courts are competent for all civil law disputes. As the cantons are free to organise the jurisdiction ratione materiae, some cantons have established first instance courts that only hear specific types of civil disputes (eg, for matters of employment or rental law).

For certain complex matters – inter alia, IP law disputes, cartel law disputes, disputes on the use of a business name – there is, as provided for by statute, the jurisdiction of a sole cantonal court (article 5 CPC). Certain cantons, inter alia, Zurich, established a commercial court that is the sole cantonal instance for commercial disputes when the requirements provided for in article 6 CPC are fulfilled. In cases where only the defendant is registered in a commercial register, the plaintiff may choose between the commercial and the ordinary court.

In Switzerland, cantonal courts have jurisdiction also concerning federal law with the exception of certain patent law disputes for which there exists exclusive jurisdiction of the Swiss Federal Patent Court.

Courts are independent from other branches of power such as the executive and the legislature.

As a matter of principle, there is no legal requirement to follow precedents (no stare decisis). Yet, as a matter of fact, cantonal courts tend to abide by the precedents of the Federal Supreme Court to avoid the risk of their decisions being overturned. A binding force of a higher court's decision exists if the decision is remanded to the lower court. Finally, a court decision may be binding in the context of res iudicata (ie, in any subsequent proceedings between the same parties concerning the same subject matter).

There are no juries in Switzerland.

2 Give an overview of basic procedural principles that govern civil litigation in your jurisdiction.

In terms of a high-level overview, basic procedural principles include, among others, the following:

  • Good faith conduct (article 52 CPC): the participants in civil proceedings shall act in good faith.
  • Publicity (article 54 CPC): hearings and any oral pronounciation of judgment shall be public. The decisions shall be accessible to the public.
  • Duty to substantiate the facts and provide evidence (article 55 CPC): subject to cases provided for by law (ex officio establishment of the facts and taking of evidence), the parties shall substantiate and prove the facts in support of their case.
  • Court's duty to enquire (article 56 CPC): where a party's submissions are ambiguous, incomplete or unclear, the court shall give the opportunity to complete or clarify the submission by posing respective questions.
  • Iura novit curia (article 57 CPC): the court applies the (Swiss) law on its own motion (ex officio). While, as a matter of principle, the court shall also establish foreign law (if applicable), it may request the cooperation of the parties, and, in matters involving an economic interest, assign the task of establishing foreign law to the parties (article 16 of the Swiss Private International Law Act (PILA)).
  • Non ultra petita (article 58 CPC): subject to statutory exceptions, the court shall neither award a party more than or anything different from what the party has requested nor less than what the counterparty has acknowledged.
  • Right to be heard (article 29 Swiss Constitution; article 53 CPC): This principle entails the right to give its' views on any and all circumstances pertinent for the decision, to make motions, to present relevant evidence, to support its legal points and to participate in any and all hearings (Staehelin/ Staehelin/Grolimund/Bachofner, Zivilprozessrecht, 3rd ed, 2019, p. 155 et seq).

3 Describe the general organisation of the legal profession.

The admission as a lawyer and the professional duties of lawyers are governed by the Federal Act on the Freedom of Movement for Lawyers (FAFML).

To represent parties before any court in Switzerland, lawyers must be registered with a cantonal register of lawyers. For such registration, lawyers must fulfil several requirements. As to the professional requirements, after successfully completing their studies in law at a Swiss university (under certain conditions also at a university abroad), lawyers must complete an internship of at least one year and must pass the cantonal bar exam (article 7 FAFML). Lawyers registered in a cantonal register are permitted to represent parties before any Swiss court. Personal requirements include the absence of a criminal conviction for acts incompatible with the legal profession, the absence of a deed of loss against them and the capacity of practising law independently (article 8 FAFML). Further, it is a lawyer's professional duty to have professional liability insurance in place, with a limit of liability of at least one million Swiss francs.

In Switzerland, there are no two categories of lawyers as in the UK where barristers are distinguished from solicitors.

Lawyers from EU/EFTA member states may temporarily represent clients before courts in Switzerland. While they cannot be registered in a cantonal register of lawyers, they have to adhere to the rules of professional conduct as well as to professional secrecy (articles 25, 12 and 13 FAFML). The permanent representation by lawyers from EU/EFTA member states before courts under their original professional title requires the registration with a cantonal supervisory authority over lawyers. The lawyers have to register with the supervisory authority of the canton in which they have a business address, and they must provide evidence of their admission to the bar in their home state (articles 27 et seqq FAFML). Finally, lawyers from member states of the EU/EFTA may be registered in the cantonal register for lawyers if they have passed a proficiency test or have been registered as lawyers active under their original professional title for at least three years and have effectively and regularly been active in the area of Swiss law or – if they have been active less than three years – have shown their proficiency to the (cantonal) examining commission (articles 30 et seq FAFML).

Specialised plaintiff or defendant bars are not known in Switzerland.

4 Give a brief overview of the political and social background as it relates to civil litigation.

Civil courts are well organised and functioning. However, proceedings are usually quite expensive, which often discourages people from filing suit. Thus, in many cases, parties try to find an amicable settlement.

Access to justice is supported by the government. Several amendments to the CPC are currently discussed. Among others, the reform of the CPC is intended to facilitate access to court (eg, by reducing the advance on costs). Furthermore, it aims at strengthening the conciliation procedure and ensuring better coordination of proceedings. Additional contemplated revision points include the introduction of a legal privilege for in-house counsel and the possibility to allow court proceedings to be held in English. Further envisaged revisions include the enhancement of collective legal redress.

The caseload of the cantonal courts as well as of the Federal Supreme Court is high and increasing.

Typical "professional" or activist plaintiffs are not common in Switzerland. However, associations and other organisations of national or regional importance that are authorised by their articles of association to protect the interests of a certain group of individuals may bring an action in their own name for a violation of the personality of the members of such group (article 89 CPC). Though, this instrument is hardly used in Switzerland (BSK ZPO-Klaus, 3rd ed, 2017, article 89, paragraph 9).

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.