SWITZERLAND Law and Practice Contributed by: Annemarie Lagger, Amina Chammah and Isabell Schellhas, Walder Wyss Ltd
if the limitation period for claims under the Federal Product Liability Act has expired. This absolute limita - tion period generally runs regardless of whether the injured person has any knowledge of the damage and even if the damage has not yet occurred. However, the European Court of Human Rights (ECHR) recently condemned Switzerland once again for its handling of limitation periods, in light of the lengthy latency period of asbestos-related diseases and the realistic oppor - tunity for victims to recognise the damage. Therefore, it is unclear how a court would handle future cases in which damages only surface after the expiry of the limitation period. 2.4 Jurisdictional Requirements for Product Liability Claims The Swiss Civil Procedure Code determines the local - ly competent court for a dispute in domestic matters, whereas the Swiss Federal Act on Private Interna - tional Law or the Lugano Convention (applicable in civil and commercial matters involving parties from EU or European Free Trade Association (EFTA) states) establishes the territorial jurisdiction of a Swiss court in international, cross-border disputes. The rules regarding the place of jurisdiction are largely comparable in both domestic and international cases. As a general rule, proceedings can be initiated in the competent court at the domicile or seat of the respond - ent (eg, at the seat of the liable producer). Depend - ing on the area of private law concerned, a claimant may also initiate proceedings at another forum: eg, in product liability cases, a consumer would be entitled to bring a claim before the competent courts at the place where the act occurred or had its effect. With regard to subject-matter jurisdiction, it can be said that all cantonal courts in Switzerland have juris - diction in all areas of the law and apply both cantonal and federal law. There are no specific/specialised courts for product liability claims, which can therefore be brought before any locally competent court. However, the Swiss Civil Procedure Code grants the cantons the option to establish specialised commer - cial courts, in which the panel of judges is mixed, ie, composed of regular judges and experts (so-called expert judges) in the economic sector relevant for the
case. Four cantons – Zurich, Berne, Aargau and St Gallen – have established such a court, which is part of the cantonal supreme court and serves as a court of first instance for commercial matters. Such com - mercial courts have subject-matter jurisdiction if: • a claim concerns the commercial activity of at least one of the parties to the dispute; • the value in dispute exceeds CHF30,000 or the dispute is not a property dispute; • the parties to the dispute are registered in the Swiss commercial register or a similar foreign reg - istry; and • the dispute does not arise from an employment relationship, the Recruitment Act, the Gender Equality Act, or relate to the renting or leasing of residential and commercial premises or to agricul - tural leases. Where only the defendant is registered as a legal entity in the commercial register, a claimant can choose to initiate proceedings before either the commercial court or the locally competent ordinary court. If a producer has its registered seat in a canton with a commercial court, an injured party can thus choose to bring its product liability claim before either the commercial court or the ordinary court. If a claiming party has the possibility to choose where to bring its claims, which court is the most favourable depends on the underlying facts and on the party’s perspective. Commercial courts have the advantage that experts from the relevant sectors are part of the judges’ panel, whereas judges of ordinary courts gen - erally do not have expert knowledge in the specific product sector, but their decisions might be more con - sumer friendly. Another difference to take into consid - eration is that there is only one legal remedy against decisions rendered by a commercial court, whereas decisions of the ordinary courts can be appealed against twice (see 2.11 Appeal Mechanisms for Prod- uct Liability Claims ). 2.5 Pre-Action Procedures and Requirements for Product Liability Claims Swiss procedural law provides for mandatory recon - ciliation proceedings. Before initiating the main pro - ceedings, the claimant must submit a reconciliation
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