SWITZERLAND Law and Practice Contributed by: Aurélie Conrad Hari, Pascal Hachem, Julien Renaud and Arthur M. Urben, Bär & Karrer
at any time if the applicant shows credibly that the evidence is at risk or that it has a legitimate interest. Swiss courts handle procedural document production rights very restrictively – meaning that, as a practi- cal result, a plaintiff will typically have to fully rely on the evidence in its possession. In certain instances, there are more general information rights under sub- stantive law as well as data protection law. However, with regard to information rights under the Swiss Data Protection Act, there is case law stating that exercis- ing such rights in anticipation of litigation to circum- vent the narrow civil procedural document production rights is an abuse of rights. Trial Disclosure In Swiss civil proceedings, parties submit their plead- ings and documentary evidence during the allegation phase. Each party must present the facts on which they rely and provide the corresponding evidence. The court then examines the evidence presented and hears witnesses as well as expert opinions. Parties are required to co-operate in the taking of evidence. Rules of Privilege Communications between a client and their attor- ney are protected, provided that the communication relates to the attorney’s typical professional activities, such as legal advice and representation. Moreover, lawyers cannot be compelled to testify or produce privileged documents under Swiss law, unless they are released from the professional secrecy by the cli- ent. It is worth mentioning that, as of 1 January 2025, the new Article 167a of the SCCP will extend privilege in civil proceedings to in-house counsels under certain conditions. 3.11 Remedies In the absence of any dedicated collective redress mechanism that would embody its own remedies, all general remedies are possible according to the ordi- nary proceedings. Certain sector-specific laws in Switzerland also pro- vide for collective redress mechanisms with specific remedies, such as collective actions to claim reim- bursement for the unlawful withholding of entitlements or benefits under Articles 85 and 86 of the CISA, with
the investment fund being the direct beneficiary of any successful action (see 2.1 Collective Redress and Class Action Legislation ). 3.12 Settlement and ADR Mechanisms For the Swiss forms of collective redress, the same principles apply with regard to settlement and ADR as for individual actions. Judicial and Extrajudicial Settlements Parties involved in a dispute can engage in direct negotiations to reach a settlement. Extrajudicial set- tlements are concluded without a court being involved and, in order to stop the lawsuit, would require the parties to agree to withdraw the claim or to an indefi- nite stay of proceedings. Judicial settlements are con- cluded before the court, permissible at every moment during the procedure and immediately enforceable. Mediation Mediation is a voluntary process where the parties involved in a dispute agree to seek a resolution with the help of a neutral mediator. Articles 213 et seq of the SCCP deal expressly with the use of mediation in civil proceedings and provide that the court may recommend mediation to the parties at any time and, at the request of the parties, conciliation proceedings may be replaced by mediation. The court proceed- ings remain suspended until the request for media- tion is withdrawn or until the court is notified of the end of the mediation. The parties are responsible for organising as well as conducting the process and they bear the costs of the mediation. Mediation proceed- ings are confidential. If the parties reach an agreement approved by the court, it has the same effect as a legally binding decision. Arbitration The SCCP also allows domestic arbitration as a formal ADR mechanism whereby the parties agree to submit their dispute to one or more arbitrators, who make a binding decision. For international cases, the Swiss Private International Law Act sets forth Switzerland’s arbitration law. Switzerland is among the world’s lead- ing hubs for international arbitrations and remains a particularly arbitration-friendly jurisdiction, including in the context of set-aside proceedings (which must be brought directly to the Swiss Supreme Court and
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