SWITZERLAND Law and Practice Contributed by: Daniel Zimmerli, Michael Schifferli and Nathalie Herzog, Wenger Plattner
cedure (which is applicable to injunctions), no security deposit for party expenses can be obtained. The court will determine the amount of the security deposit after having heard the parties, and will set a deadline. The security can be provided in cash (via bank transfer) or in the form of a guarantee from a bank with a branch in Switzerland or from an insur - ance company authorised to operate in Switzerland.
It is uncertain which sectors this will have an impact on, as the procedural and financial risks in a civil procedure are considerably higher than in a Com - Co investigation (which is basically free for a plain - tiff). However, ComCo can freely decide whether to open an investigation or not (based on the principle of opportunity). In contrast, a civil court must take a case at hand once an action has been filed. It can be expected that cases of relative market power will increase before civil courts. The concept of rela - tive market power has only recently been introduced to the CartA. ComCo has been dealing with a number of pioneering cases where it has laid out the principles of how such cases are to be assessed. These cases may guide both parties and civil courts in future dis - putes. Beyond this, there are currently no indications of a rise in civil proceedings relating to agreements restricting competition or abuses of a dominant position. However, further damages claims may emerge in light of the relatively high number of bid-rigging investi - gations concerning public tenders in several can - tons. These claims are predominantly rooted in tort or contract law, with antitrust provisions and ComCo decisions forming the substantive competition law background. It also deserves to be mentioned that the revised laws on public procurement in Switzerland (implementing the GPA 2012) stipulate harsh contrac - tual and procedural sanctions for undertakings that engage in bid-rigging agreements. This means that both administrative and civil measures may increas - ingly be applied, while alternative dispute resolution between public authorities and undertakings in public procurement proceedings may become a more attrac - tive option. There is no indication that there will be an increase in civil cross-border cases in Switzerland. Civil claims primarily seem to be filed in other countries, but not in Switzerland as Swiss civil procedure law – as set out above – poses considerable financial risks to plaintiffs and does not provide for a class action option.
12. Appeals 12.1 Basis of Appeal
Decisions of first instance courts can generally be appealed to a cantonal high or supreme court (their denomination varies, depending on the cantons). Decisions of cantonal high or supreme courts can generally be appealed to the Federal Supreme Court. Where a commercial court has jurisdiction for anti - trust cases (see 2.2 Courts ), the decision can only be appealed once to the Federal Supreme Court. In the second instance, in most cases, the appeal can regard both points of the law and the facts. In some exceptional cases, the facts can only be appealed if they are obviously incorrect. The Federal Supreme Court typically only decides on points of law. Only in exceptional cases of arbitrariness will it allow appeals regarding the facts.
13. Looking Forward 13.1 Legislative Trends and Other Developments
The pending revision of the CartA is intended, inter alia, to facilitate civil procedures as it eases the stat - ute of limitation for plaintiffs (in relation to a ComCo investigation, see 1.2 Recent Developments ). This is expected to facilitate follow-on procedures as plain - tiffs may more easily rely on ComCo’s findings and assessments.
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