SWITZERLAND Law and Practice Contributed by: Annemarie Lagger, Amina Chammah and Isabell Schellhas, Walder Wyss Ltd
request to the conciliation authority (the so-called justice of the peace), following which the authority will schedule a conciliation hearing. If no agreement can be reached, the conciliation authority will issue an authorisation to proceed (ie, to file a claim before a court), which is valid for three months. If a claim is filed before a court without a valid authorisation to proceed, the court will not decide on the merits but dismiss the case for procedural reasons. Despite the mandatory nature of the reconciliation proceeding, the Civil Procedure Code provides for a few exceptions, some of which might be relevant in product liability cases. A claimant may unilaterally waive conciliation if the respondent’s registered domi - cile is outside Switzerland. The parties may mutually agree to waive reconciliation if the amount in dispute is at least CHF100,000. In addition, and irrespective of the amount in dispute, the parties may agree to replace the reconciliation procedure with mediation pursuant to Article 213 of the Swiss Civil Procedure Code. In addition, and as set out in 2.4 Jurisdictional Requirements for Product Liability Claims , certain cantons have established commercial courts. If a producer has its registered seat in one of these can - tons, an injured party may choose to bring its product liability claim either before the commercial court or the ordinary court, as long as the criteria as set out in 2.4 Jurisdictional Requirements for Product Liability Claims are met. If a claimant decides to bring a claim before a commercial court, no reconciliation proceed - ings take place and the claim must be filed directly with the commercial court. 2.6 Rules for Preservation of Evidence in Product Liability Claims There are no specific rules, under Swiss product liabil - ity law or Swiss procedural law, obliging a producer or other distributor to preserve any evidence in product liability cases. There are, as in many other jurisdictions, general evi - dentiary risks in not preserving evidence. In a prod - uct liability case, the claimant is generally required to prove that the defendant’s product is defective, and that the product defect is the cause of their injury
or damage to property. Under Swiss product liabil - ity law, the defendant (producer or other distributor) has several defences (please refer to 2.12 Defences to Product Liability Claims for further discussion of these). In this light, a producer or other distributor is well advised to preserve documentation (eg, random samples, technical documentation, consumer feed - back, etc) and product samples for every batch so that such evidence can be readily produced if nec - essary. Furthermore, under some sectoral laws, pro - ducers may be required to preserve the conformity declaration or technical documentation. 2.7 Rules for Disclosure of Documents in Product Liability Cases There are no specific rules on the taking of evidence in product liability cases, and the Swiss Civil Procedure Code does not provide for any pre-trial or discovery mechanisms. Pursuant to the general rules on the tak - ing of evidence in civil procedure, each party must indicate the evidence it wants to rely on in its briefs. To the extent that such evidence is already in its pos - session, the party must file the evidence together with its briefs. For product liability cases, in particular this holds true for: • product samples; • documentary evidence (technical documentation, risk assessment, customer feedback, etc); To the extent that it is the responsibility of the court to order the taking of evidence, parties must submit respective requests together with precise descriptions of the evidence. In particular, this holds true for: • opinions to be submitted by a court-appointed expert (indication of the questions to be present - ed); • inspections to be executed by the court (indication of the subject); and • witness testimony (indication of the witnesses) – under Swiss law, witnesses will be examined by the court and there are no cross-examinations. • expert opinions; and • digital or other data. Court-Ordered Evidence
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