SWITZERLAND Law and Practice Contributed by: Mani Reinert and Pascal Hachem, Bär & Karrer
4. Class and Collective Actions 4.1 Statutory Basis
relevancy of documents requested to be produced by the counterparty. 6.2 Legal Professional Privilege There is a legal privilege for correspondence with external counsel. However, the legal privilege does not extend to pre-existing documents – ie, documents that existed prior to the instruction of the external counsel. There is also a legal privilege for correspondence with in-house counsel in civil litigations, if: • the respective company is registered in the Swiss or a comparable foreign commercial register; • its legal department is led by a lawyer admitted to practise as a lawyer in Switzerland or their country of origin; and • the activity in question would be considered specif - ic to the profession of an attorney. 6.3 Leniency and Settlement Agreements Swiss civil procedure as such does not protect leni - ency statements and settlement agreements from disclosure. COMCO has put in place safeguards to prevent the disclosure and use of leniency statements and settlement agreements in follow-on antitrust liti - gation. However, these safeguards are largely untest - ed in the context of civil antitrust litigation. COMCO will generally reject requests by third par - ties to produce leniency statements and the related pre-existing documents. The same is true for docu - ments related to the negotiation of a settlement agree - ment (though not the settlement agreement itself). In the COMCO investigation itself, other parties of the COMCO investigation will only get access to lenien - cy statements and material in relation to settlement agreements under the condition that they use them solely for the purpose of defending themselves in the COMCO investigation.
Swiss civil procedure does not provide for class or collective actions. A proposal to introduce a col - lective redress has not been further pursued by the Swiss Parliament. Claimants that want to claim dam - ages collectively have to use individual assignment of claims or bring a lawsuit as joint plaintiffs.
4.2 Opting In or Out See 4.1 Statutory Basis . 4.3 Direct/Indirect Purchasers
See 4.1 Statutory Basis . 4.4 Class Certification See 4.1 Statutory Basis .
5. Choice of Jurisdiction 5.1 Rules on Jurisdiction and Applicable Law As regards jurisdiction, the general principles of civil litigation apply. In the absence of an agreement on the place of jurisdiction, for actions arising from tort, the court with jurisdiction is the court at the place of the seat of the injured party or at the place where the conduct or the damage occurred. In national cases, the applicable law is Swiss law. In international cases, the applicable law is the law of the state in which the conduct directly affected the claimant.
6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure
There is no discovery in Swiss civil procedure com - parable to common law jurisdictions. It is not pos - sible to merely request production of documents that could be relevant to the dispute. That said, litigants may request the court to order the counterparty to produce documents. However, these documents have to be specifically and clearly identified by the request - ing party. Courts also apply a high standard to the
7. Witness and Expert Opinions 7.1 Witness Procedure
The parties can request the court to hear witness - es. If the court approves this request, witnesses are
184 A NTITRUST LI T IGATI O N 2026
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