SWITZERLAND Law and Practice Contributed by: Aurélie Conrad Hari, Pascal Hachem, Julien Renaud and Arthur M. Urben, Bär & Karrer
Conversely and as explained in 3.7 Length and Time- table for Proceedings , proceedings can be delayed or suspended if there are valid reasons, such as ongoing settlement negotiations or related cases pending in other courts. 3.9 Funding and Costs In Switzerland, the general rule for costs in civil pro- ceedings is that the losing party must pay the court fees as well as its own legal fees and compensate the prevailing party for its legal fees. If neither party prevails entirely, the fees are split between the parties in accordance with the outcome of the proceeding. In exceptional cases, the court has the discretion to deviate from these rules and allocate the costs dif- ferently. The court might require the plaintiff to provide an advance payment covering the anticipated court costs, with a limit of up to half the estimated expenses starting from 1 January 2025. Generally, these costs are proportional to the value of the claim. Third-party funding is a common method for financing collective redress actions. This involves a third-party financier covering the legal costs in exchange for a portion of the awarded damages or settlement. This is particularly relevant given the prohibition on con- tingency fees (pactum de quota litis) in Switzerland, which restricts attorneys from entering into agree- ments where their fees are contingent on the outcome of the case. Third party-funding is not regulated in Switzerland. Courts, including the Swiss Supreme Court, have shown significant tolerance to third party- funding. 3.10 Disclosure and Privilege Pre-Trial Disclosure Swiss law does not have a broad pre-trial discovery process similar to that of Anglo-American jurisdic- tions. Instead, it allows for extremely limited pre-trial rights of information and inspection in the general rules of civil procedure or in special laws in order to help a claimant assess whether a claim exists and whether it can be proven. Specifically, Article 158 (1) of the SCCP permits the precautionary taking of evi- dence, providing that the court may take evidence
consider the individual interests of the affected group members as well as the significance of the case. This mechanism applies exclusively to actions for associa- tion seeking injunctive or declaratory relief (prohibit- ing imminent violations, ceasing ongoing violations, or declaring their unlawfulness) and not to class actions for monetary damages – the introduction of which is currently under parliamentary review in Switzerland. 3.7 Length and Timetable for Proceedings In Switzerland, the average duration of civil proceed- ings can vary based on factors such as the complexity of the case, the court involved, the co-operation of the parties involved, the type of procedure applica- ble to the dispute, and potential procedural hurdles. Typically, Swiss civil cases may take anywhere from several months to a few years to resolve. Complex cases, particularly those involving extensive evidence gathering or numerous expert witnesses, may prolong the initial proceedings. Furthermore, first-instance judgments are subject to appeal – potentially reaching the Federal Supreme Court – in accordance with the general rules of procedure. In such instances, it may take several years for a final and binding judgement to be rendered. 3.8 Mechanisms for Changes to Length/ Timetable/Disposal of Proceedings Summary proceedings are organised in a flexible and expeditious manner, with the judge having a wide margin of discretion to organise them. Summary pro- ceedings differ mainly from the ordinary and simplified proceedings in that the means of proof are restricted. Articles 248 et seq of the SCCP define its scope and list the different areas of application of summary pro- ceedings – notably, clear-cut cases, interim measures, and the numerous cases provided for by federal law, including specific actions under the DEBA. Moreover, simplified proceedings apply to disputes with a value up to CHF30,000 or to specific types of cases, regardless of the amount in dispute (Article 243 of the SCCP). This type of proceeding is supposed to be less formal than ordinary proceedings, with more emphasis on oral arguments and judicial involvement, but these principles may be relativised if the parties to the proceedings are represented by lawyers.
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