SWITZERLAND Law and Practice Contributed by: Aurélie Conrad Hari, Pascal Hachem, Julien Renaud and Arthur M. Urben, Bär & Karrer
Bär & Karrer Ltd 12 quai de la Poste CH-1211 Geneva 3 Switzerland Tel: +41 58 261 57 00 Email: geneva@baerkarrer.ch Web: www.baerkarrer.ch/en
1. Policy Development of Collective Redress/Class Action Mechanisms 1.1 History and Policy Drivers of the Legislative Regime Historically, Swiss law follows the concept of indi- vidual rights and the individual enforcement of those rights. Accordingly, plaintiffs engage directly in legal proceedings, initiate actions in their own names and defend their personal interests without reliance on any other party to the proceedings. Thus, when numerous individuals suffer similar or identical harm, it is in prin- ciple incumbent upon each person to independently pursue their claims in court. Despite the long-standing debate over collective redress or class actions in Switzerland, such mecha- nisms are markedly alien to Swiss law and viewed as potentially prone to abuse, particularly in view of the contingency fees (prohibited under Swiss law) that often come along with such collective redress mecha- nisms. Therefore, the Swiss legislator notably opted in 2006 not to incorporate the Anglo-American class action concept into the Swiss Code of Civil Proce- dure (SCCP) – which came into force on 1 January 2011 ‒ and decided against including collective action instruments in the Federal Act on Financial Services (“FinSA”), even though such redress had been sug- gested in the draft bill. Current Legal Framework Currently, Swiss law only provides limited and frag- mented instruments to allow collective interests to act jointly.
Under Swiss civil procedure law, individuals can seek to collectively enforce their interests through civil liti- gation ‒ if certain conditions are fulfilled and to a limit- ed extent only ‒ through the joinder of parties (Articles 70 and 71 of the SCCP), the combination of actions in proceedings (Article 90 of the SCCP), or the gen- eral right of action for associations or organisations of regional or national importance (Article 89 of the SCCP). In addition to the general right of action for organisa- tions, there are special rights of action for organisa- tions. These are dispersed in various laws, such as the Federal Act on Gender Equality (GEA), the Federal Act on Unfair Competition (UCA), the Swiss Code of Obli- gations (SCO), or the Federal Act on the Protection of Trademarks and Indications of Source (“TmPA”). Furthermore, in certain sectors and in certain special laws, Swiss law provides for instruments that lead to the collective satisfaction of rights through a repre- sentative, with effects comparable to those of a group action – for instance, in the fields of collective invest- ments schemes, mergers and transformations, or debt enforcement and bankruptcy. Policy Drivers for Change and Initial Proposals In 2013, the Swiss Federal Council published a report regarding the collective exercise of rights in Switzer- land. It highlighted the inadequacies of existing proce- dural tools in effectively addressing mass or dispersed damages, as the high costs and complexities of indi- vidual litigation often deterred people from pursuing their individual claims. The report thus acknowledged the need to enhance procedural protection and the access to justice for consumers, financial investors,
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