SWITZERLAND Law and Practice Contributed by: Mani Reinert and Pascal Hachem, Bär & Karrer
9. Liability and Contribution 9.1 Joint and Several Liability
generally questioned orally by the court. Parties may request the court to ask additional questions. Under certain conditions, the interrogation of the witnesses may also take place via videoconference. 7.2 Expert Witness Role and Procedure There are two types of expert witnesses: • expert witnesses appointed by the court; and • expert witnesses hired by the parties. Expert witnesses appointed by the court are appoint - ed either ex officio or upon request of the parties. They have to be independent, which is why the same grounds for recusal apply to an expert witness as to court officials. Expert witnesses hired by the parties have the same evidentiary value as allegations of the parties them - selves. 8. Damages 8.1 Damages: Assessment, Passing On and Interest Damages are assessed by using the difference theo - ry. The difference theory compares the current status with the hypothetical status that would have occurred if there had not been an antitrust infringement. The damage can include effective losses but also foregone profits. The injured party has to prove the amount of the dam - age. Courts generally impose high requirements on the substantiation and proof of damages Where the exact value of the damage cannot be quantified, the court can estimate the value at its discretion in the light of the normal course of events and the steps taken by the party suffering the damage. The passing- on defence is available and has to be proven by the party infringing the antitrust law. Punitive damages are not available under Swiss law. The statutory default interest rate is 5% per annum.
If the claim is based on tort law, the liability is joint and several. The liability of immunity applicants is not limit - ed. Consequently, if several parties participated in the infringement, the party suffering the damage can sue one of the infringers for the entire damage suffered. The respective party may then claim contributions against the other parties for the amount paid exceed - ing its proportional share. Generally, each infringer is liable for an equal share unless otherwise agreed or indicated by the nature of the relationship. 9.2 Contribution There is the possibility of claiming contributions from other parties – see 9.1 Joint and Several Liability . Injunctive relief is available if the claimant demon - strates a prima facie case meeting all of the following requirements: • the claimant has a claim that is infringed or threat - ened; • there is a risk of irreparable harm if the injunctive relief is not granted; • the need for relief is urgent; and • the requested relief is appropriate, necessary and proportionate. 10. Other Remedies 10.1 Injunctions In antitrust litigation, injunctive relief typically entails the order to supply the claimant with the goods or ser - vices in question. The award of payments is typically not obtainable due to the lack of irreparable harm. In cases of exceptional urgency – for example, where there is a risk of the claim being thwarted – the court can order the injunctive relief immediately and without hearing the respondent (so-called super-provisional measure). If a super-provisional measure is granted, the court gives the respondent an opportunity to sub - mit a written response. It then renders its decision on injunctive relief. A super-provisional measure can be obtained within days or even hours.
185 A NTITRUST LI T IGATI O N 2026
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