SWITZERLAND Law and Practice Contributed by: Aurélie Conrad Hari, Pascal Hachem, Julien Renaud and Arthur M. Urben, Bär & Karrer
General Instruments Under the SCCP If certain conditions are fulfilled, it is the parties to civil proceedings who have standing to rely on a joinder of parties within the meaning of Articles 70 and 71 of the SCCP or on a combination of actions in accord- ance with Article 90 of the SCCP (see 2.1 Collective Redress and Class Action Legislation ). 3.4 Class Members, Size and Mechanism – Opting In or Out As the Swiss legal system lacks a comprehensive class action mechanism, there are no established classes or rules determining class membership. Litigation is conducted by individual plaintiffs, in principle. Nevertheless, there are mechanisms where the judg- ment is binding to a group of individuals with no real possibility for them to opt out, which is the case for the actions under Article 260 of the DEBA, Article 105 of the MergA, and Article 86 of the CISA. As for the action of the community of creditors of a bond loan within the meaning of Articles 1157 et seq of the SCO, it is an instrument similar to an opt-in collective action – given that there is either a group action for all the creditors of the loan with the agreement of all of them or there is no group action at all (see 2.1 Collective Redress and Class Action Legislation ). 3.5 Joinder Given that Swiss law does not provide for collective redress mechanisms, there are no rules for joining further parties to such actions (see 2.1 Collective Redress and Class Action Legislation and 3.4 Class Members, Size and Mechanism – Opting In or Out ). General Rules on Third-Party Joinders The general rules of the SCCP provide for several instruments for third-party joinders to ensure that all parties with a legal interest in the outcome of a case can participate in the proceedings. Notably, Articles 73 et seq of the SCCP allow a third party to intervene in ongoing proceedings if they have a legal interest in the outcome, either to assert their own claims (“prin- cipal intervention”) (Article 73 of the SCCP) or to sup- port the claims of one of the existing parties (“acces- sory intervention”) (Articles 74 et seq of the SCCP).
By a “third party notice” within the meaning of Articles 78 et seq of the SCCP, one of the parties involved in a lawsuit may notify a third party if they believe that the third party might have a claim against them or might be liable to them if the lawsuit is unsuccessful. Upon notification, the third party is allowed to join the proceedings. Furthermore, according to Articles 81 et seq of the SCCP, if a third party is notified and decides to join the proceedings, they can bring their own claims against one of the existing parties (“third-party action”). 3.6 Case Management Powers of Courts Bifurcation of Proceedings According to Article 125 (c) of the SCCP, when it seems appropriate to simplify the proceedings, Swiss civil courts may order the joinder of separately filed actions if they have the same object and if they are subject to the same type of procedure. This power helps streamline proceedings and reduce the risk of inconsistent judgments. Besides, upon request, the judge can also order a bifurcation of the proceeding should that simplify its outcome. Typically, such bifurcation may be ordered when preliminary procedural issues are to be dealt with or if specific issue(s) on the merits may lead to ending the case without having to hear it in its entirety. Stay of Proceedings Under Article 126 (1) of the SCCP, courts may stay proceedings if necessary – ie, particularly when the outcome depends on another ongoing case in order to ensure that related cases are resolved consistently, or when there are ongoing settlement negotiations. It should be noted that there are also cases where the law itself provides for the stay of proceedings by operation of law or where the judge may order such a stay. Determination of Amount in Dispute Pursuant to Article 94a of the SCCP, which entered into force on 1 January 2025, courts may ‒ at their discretion ‒ determine the amount in dispute in actions for association (see 3.1 Mechanisms for Bringing Collective Redress/Class Actions ) where the parties cannot reach an agreement. In doing so, courts must
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