SWITZERLAND Law and Practice Contributed by: Aurélie Conrad Hari, Pascal Hachem, Julien Renaud and Arthur M. Urben, Bär & Karrer
• Claim for reimbursement by representative of investors in favour of open-ended collective investment scheme ‒ in accordance with Articles 85 and 86 of the CISA, if the open-ended collec- tive investment scheme is unlawfully denied asset entitlements or if benefits are withheld from it, the investors wishing to pursue a claim for damages in favour of the open-ended collective investment scheme concerned may request that the court appoint a representative, who will have the same procedural rights as the investors. All investors will be bound by the judgment obtained by the repre- sentative without any real possibility of opting out. However, this provision has little practical signifi- cance. • Assignment of creditors’ rights to bankruptcy estate – under Article 260 of the DEBA, any credi- tor may request the bankruptcy estate to assign a claim that the estate has renounced and secure priority payment from any resulting proceeds. The creditor obtains the right to pursue the rights of the estate before the civil court having jurisdiction over the subject matter of the right to be asserted. 3.2 Overview of Procedure Insofar as the Swiss legal system does not have a general collective redress mechanism, the various instruments for the collective enforcement of rights are subject to the overall procedure of the SCCP. Notably, the SCCP outlines different types of proce- dures to handle various civil disputes – namely, the ordinary, simplified, and summary proceedings. Ordinary proceedings (Articles 219 et seq of the SCCP) are the standard procedures for civil cases that do not fall under any special category. An ordinary proceeding involves a detailed process, including a conciliation proceeding or a mediation attempt (with some exceptions), exchange of written submissions, optional instruction hearing, the main hearing encom- passing the taking of evidence and the final pleadings of the parties, as well as the decision by the court. Simplified proceedings (Articles 243 et seq of the SCCP) are used for cases involving smaller amounts of money (up to CHF30,000) or – regardless of the amount in dispute – for cases specifically provided for by the SCCP, such as disputes under the GEA and
the Participation Act. They are designed to be faster and less formal than ordinary proceedings. The court has more discretion to simplify the process, such as by reducing the number of written submissions and hearings. As for the summary procedure (Articles 248 et seq of the SCCP), it applies in principle to cases listed by law and particularly to cases under the DEBA. The procedure is highly simplified, with limited opportuni- ties to present evidence and fewer procedural steps. It should also be noted that federal law requires that, in principle, each canton provides two levels of civil jurisdiction (ie, a first-instance court and an appellate court) before the appeal to the Swiss Federal Court. However, Article 5 (1) of the SCCP lists several areas where cantons are allowed to instate one single can- tonal instance, such as disputes under the UCA, dis- putes in connection with IP rights, or disputes under the CISA. According to Article 243 (3) of the SCCP, the simplified proceedings do not apply to disputes before the court of sole cantonal instance within the meaning of Article 5 (1) of the SCCP or before a Commercial Court in accordance with Article 6 of the SCCP. 3.3 Standing General and Special Rights of Action for Associations and Organisations Article 89 of the SCCP, as well as various special laws such as the GEA, the UCA, and the TmPA, grant vary- ing rights of action to certain associations and organi- sations under specific conditions (see 2.1 Collective Redress and Class Action Legislation ). Group Action As previously explained, certain special laws provide for class action mechanisms with a limited scope of application and specify the persons or entities who are entitled to bring a class action. By way of exam- ple, under Articles 85 and 86 of the CISA, a court- appointed investor representative may bring a claim on behalf of the open-ended collective investment scheme. Article 260 of the DEBA allows a creditor to be assigned claims that the bankruptcy estate has waived in order to assert the corresponding rights of the estate in court (see 2.1 Collective Redress and Class Action Legislation ).
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