SWITZERLAND Law and Practice Contributed by: Simon Gabriel, Axel Buhr, Roxane Schmidgall and Audrey Duffner, GABRIEL Arbitration
8. Evidence 8.1 Collection and Submission of Evidence Typically, Swiss arbitrators use the IBA Rules on the Taking of Evidence in International Arbitration (the “IBA Rules”; 2020 version) as a source of inspiration for the taking of evidence. The implications of this are outlined below. • There are usually no US-style discovery proceed - ings, but requests for the production of specific documents that may be relevant to the outcome of the case are generally considered to be admis - sible (typically in the format of a so-called Redfern Schedule). • Correspondence between clients and legal counsel is usually considered to be legally privileged and is thus excluded from any production orders. • Documentary evidence is to be submitted together with the written submissions. • Written witness statements are fairly common in Swiss international arbitration proceedings. • In the oral witness hearings, there is typically a brief direct examination (to “warm up” the witness) and then cross-examination on all relevant issues. In many cases, Swiss arbitral tribunals admit re-direct examination limited to issues covered in cross-examination and re-cross-examination limited to issues covered in re-direct examination. • The arbitral tribunal often takes the prerogative to ask questions of witnesses at any time during the examinations, but experienced arbitrators will rarely interfere with the examinations of versed counsel, unless there are specific reasons to do so. 8.2 Rules of Evidence Article 184.1 of the PILA (merely) provides that it is for the arbitral tribunal to administer the taking of evi - dence, and Article 184.2 of the PILA provides that the arbitral tribunal or a party (upon approval by the arbitral tribunal) may seek the assistance of the state courts with respect to the taking of evidence. The state courts apply their own (domestic) law or, since the revision in 2021, they may (on request) apply or take account of other forms of procedure, which may, in particular, be helpful for the examination of witness - es (Article 184.3 of the PILA).
At the same time, the arbitrators have a duty to con - duct the proceedings in an efficient and effective man - ner and issue the necessary orders in good time. They also have a duty to deliberate on the merits of the case and make an award on the basis of the applicable substantive law (which is applied ex officio in Swiss arbitration proceedings pursuant to the principle of iura novit arbiter). An exception applies if the parties agreed that the arbitral tribunal shall decide ex aequo et bono (Article 187.2 of the PILA). On the other hand, the right to be heard does not, pursuant to consistent jurisprudence by the Swiss Federal Tribunal, entitle the parties to a reasoning of the award. In this regard, the Swiss Federal Tribunal specified in a recent decision (decision of the Swiss Federal Tribunal No 4A_41/2023) that a scrutiny of the award by the Swiss Federal Tribunal was “inacces - sible” where the release of an unreasoned award was in line with the procedural rules agreed by the par - ties (see Buhr, No setting aside without reasoning, in: dRSK, published on 10 July 2023). Finally, the application of the law by the arbitral tribu - nal must not be surprising. However, a surprise has been acknowledged by the Swiss Federal Tribunal only in very exceptional cases, where an arbitral tri - bunal applied a legal act to which no party had made reference in the arbitration proceedings and the appli - cation of which could not have been foreseen by the parties (decision of the Swiss Federal Tribunal No There are no legal requirements for legal representa - tives in arbitration proceedings in Switzerland, but it is highly recommended to choose a legal representa - tive who is not only educated in Swiss law but also experienced in international arbitration. Candidates should specifically be asked about their experience in international arbitration before being instructed in an arbitration case. 4A_424/2018, paragraph 5.2.3). 7.4 Legal Representatives For legal representation of parties before any Swiss state courts (also in challenge proceedings against an arbitral award before the Swiss Federal Tribunal), a Swiss Bar exam or an international accreditation as a lawyer in Switzerland is required.
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