SWITZERLAND Law and Practice Contributed by: Aurélie Conrad Hari, Pascal Hachem, Julien Renaud and Arthur M. Urben, Bär & Karrer
jurisdictions, such as the Dutch Act on Class Settle- ment of Mass Damages ( Wet Collectieve Afwikkeling Massaschade , or WCAM) for the collective settlement procedure and the EU’s Directive 2020/1828 on repre- sentative actions for consumer protection. 1.3 Implementation of the EU Collective Redress Regime This is not applicable to Switzerland. 2. Legal Framework 2.1 Collective Redress and Class Action Legislation As mentioned in 1.1 History and Policy Drivers of the Legislative Regime , the Swiss legal system has no general collective group action and instead relies on instruments that are dispersed in various laws and that permit ‒ to a certain extent ‒ individual rights to be collectively enforced through litigation. These instruments are found in various laws, including the SCCP, the SCO, the UCA, the Federal Act on Collec- tive Investment Schemes (CISA), or the Federal Act on Debt Enforcement and Bankruptcy (DEBA). Joinder of Parties Under Swiss civil procedure law, collective interests can notably be protected through the joinder of parties if certain conditions are fulfilled (Articles 70 and 71 of the SCCP). Joinder allows several claims, which are legally independent but based on similar facts or legal grounds, to be brought together in the same lawsuit by several plaintiffs or against defendants. Joinder can be either compulsory or simple. Compulsory joinder is required by the relevant sub- stantive law when several individuals or entities are involved in a legal relationship that necessitates a binding decision for all parties involved – for exam- ple, disputes involving a community of heirs or in cer- tain bankruptcy situations (Article 70 of the SCCP). In such cases, the parties involved must sue or be sued together. Simple joinder is a voluntary process, typically pursued for efficiency when certain conditions are met (Article 71 of the SCCP). In such instances, parties may col-
lectively initiate or face a lawsuit. Despite being part of joint proceedings, each party remains independent, meaning that the judgment can vary for each individu- al involved. Each litigant maintains autonomy and can manage their dispute without being influenced by the actions of other parties. Simple joinder is applicable if the following three criteria are satisfied: • first, the claims must be based on similar facts or legal grounds; • second, they must follow the same procedural type (ordinary, simplified, or summary); and • third, they must fall under the same substantive Under certain conditions, a plaintiff may also com- bine several claims that are procedurally independ- ent of each other in a single action against the same defendant (Article 90 of the SCCP). The same type of procedure must be applicable to the claims and the same substantive jurisdiction must be given. This procedural mechanism could theoretically be used to assert collective damages if numerous claims are assigned to the same plaintiff, but this model has not had any practical importance, especially because of the high procedural costs incurred. Bifurcation of Proceedings, Stay of Proceedings, and Transfer of Connected Cases The option of joining cases and suspending proceed- ings, in conjunction with the options of the combina- tion of actions and the joinder of parties, can be used to exercise rights collectively. Furthermore, the three options of joining cases, staying proceedings and transferring proceedings enable a court to hear sever- al proceedings in the interests of procedural economy and in order to avoid contradictory decisions. and territorial jurisdiction. Combination of Actions Under Article 125 (c) of the SCCP, the court may order the joinder of several cases where this would simplify the proceedings if the cases in question fall within the same territorial jurisdiction, if they involve the same type of proceedings, and if they are similar with regard to the facts and questions of law to be decided. In this way, where several plaintiffs have filed similar suits against the same defendant, the court may decide to hear all the suits together.
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