SWITZERLAND Law and Practice Contributed by: Aurélie Conrad Hari, Pascal Hachem, Julien Renaud and Arthur M. Urben, Bär & Karrer
tive, with a judgment enforceable against all creditors. However, it is only possible for the representative to claim damages indirectly suffered by the creditors. Mergers, Demergers, Transformations, and Transfers of Assets Article 105 of the MergA states that if shares or rights are inadequately maintained during a merger, demergeror transformation, each shareholder can ask the court to set fair compensation within two months of the publication of the decision. This ruling applies to all similar shareholders, with no opt-out option. General Civil Claims In addition to the areas previously mentioned, the SCCP encompasses procedural instruments that facilitate a degree of collective legal protection with- in individual actions, such as the joinder of parties (Articles 70 and 71 of the SCCP), the cumulation of actions (Article 90 of the SCCP), the bifurcation of proceedings (Article 125 (c) of the SCCP), or the gen- eral right of action for associations (Article 89 of the SCCP). Provided that the specific conditions for each instrument are fulfilled, they may generally apply to all private law disputes. Only the right of action for associations is limited in scope to violations of the personality rights of their members. For more details on each instrument, see 2.1 Collec- tive Redress and Class Action Legislation . 2.3 Definition of Collective Redress/Class Actions Given that there is no collective redress/class action in Swiss law, there is no statutory definition. Never- theless, there are several statutory provisions and interpretations that provide a framework for collective redress in Switzerland (see 2.1 Collective Redress and Class Action Legislation ). In its report on the collective exercise of rights in Swit- zerland, the Federal Council broadly defined the con- cept as procedural tools that facilitate the collective judicial resolution of claims from numerous individuals affected in a similar or identical manner, by pooling their interests and resources in a single common pro- cedure or a limited number thereof. In general, class actions are representative actions whereby individual
claims are grouped together by the fact that a plaintiff in the class acts on behalf of others who are not for- mally parties to the proceedings but who nevertheless share in the outcome, owing to the res judicata effect on their claims. The collective exercise of rights aims to enforce the law more efficiently and effectively than individual actions by collectivising interests and resources, especially when numerous claims arise from similar facts against a single defendant or a few defendants. Its objectives include procedural economy, compen- sation, prevention of unlawful conduct, and the effec- tive enforcement of objective law. The notion of collective exercise of rights must there- fore be considered in opposition to that of individual exercise of rights. A distinction must further be made between instruments that serve the collective exercise of rights and those that achieve a degree of collectivi- sation through individual actions – although academic interpretations of these instruments can vary signifi- cantly. Some instruments, depending on their con- figuration, can be used for either collective enforce- ment or collectivised individual rights (eg, actions by organisations or test case procedures). 3. Procedure for Bringing Collective Redress/Class Actions 3.1 Mechanisms for Bringing Collective Redress/Class Actions In Switzerland, the mechanisms for bringing a collec- tive redress suit are relatively limited and dispersed. Whereas some instruments are found in special laws and therefore apply only to certain areas of law, others are provided for in the SCCP and can thus be used for any private law dispute, provided that certain con- ditions are fulfilled. Such instruments are as follows. • Joinder of parties ‒ see 2.1 Collective Redress and Class Action Legislation . • Combination of actions ‒ see 2.1 Collective Redress and Class Action Legislation . • Special rights of action for organisations ‒ see 2.1 Collective Redress and Class Action Legislation .
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