SWITZERLAND Law and Practice Contributed by: Annemarie Lagger, Amina Chammah and Isabell Schellhas, Walder Wyss Ltd
who bears the burden of proof for any fact it wants to rely on in order to exonerate itself from liability. As to the relevant standard of proof: the general threshold is full proof, meaning that the court has to be convinced beyond any reasonable doubt. Where this is not possible (eg, because the defective product has been destroyed or disposed of or the amount of damage suffered cannot reasonably be quantified), the courts may apply a less strict standard. 2.10 Courts in Which Product Liability Claims Are Brought There are no specific or specialised courts for product liability cases in Switzerland. Therefore, such cases generally must be brought before ordinary courts (ie, the competent local court) or – in certain cantons and if the statutory prerequisites are fulfilled (see 2.4 Juris- dictional Requirements for Product Liability Claims ) – before the competent commercial court. Depending on the value in dispute, the proceed - ing is held in a simplified proceeding (for claims not exceeding CHF30,000) or in an ordinary proceeding (for claims above CHF30,000 or claims without mon - etary value). In Switzerland, cases are decided by judges and the exact composition of a bench depends on local, can - tonal law. In simplified proceedings, the court is, how - ever, often composed of a single judge ( Einzelrichter ), whereas there are usually three or more judges ( Kol - legialgericht ) on the panel in ordinary proceedings. There is usually no minimum threshold with regard to the damages that can be claimed. If claims are brought under the Swiss Product Liability Act, how - ever, the claimant must bear a deductible of CHF900 in the case of damage to property. There is no maximum cap on the damages that can be awarded to a claimant. However, a claimant can only be compensated for the damages it actually suffered. In other words, Swiss courts do not award so-called punitive damages that exceed the amount of the actu - al loss. Swiss law does not allow a damaged party to take monetary advantage (enrichment) from the event of damage. Accordingly, the claimant must prove each
individual damaged position (exact amount) and the causal link between the damaging event (in product liability cases, the defective product) and the respec - tive position. 2.11 Appeal Mechanisms for Product Liability Claims There are no specific rules governing the appeal mechanisms in product liability cases. The general procedural rules provide essentially for two appeal opportunities which are relevant for product liability cases: an initial appeal to the high court of the respec - tive canton, followed by a further appeal to the Swiss Federal Supreme Court. Appeal to the High Court of the Respective Canton Final and interim decisions and decisions on interim measures of a court of first instance can be appealed if the amount in dispute is at least CHF10,000. The time limit for the filing of an appeal is 30 days in ordi - nary proceedings and ten days in summary proceed - ings. The appellant may submit that the first-instance court has (i) applied the law incorrectly, and/or (ii) established the facts incorrectly. The conduct of the proceeding is, to a large extent, at the discretion of the appeal instance: ie, the court of second instance will decide whether to conduct a second round of written submissions or to hold an oral hearing. The appeal instance may conclude the proceedings either by confirming the challenged decision, by rendering a new decision or by remitting the case to the court of first instance. Appeal to the Swiss Federal Supreme Court The decision of the court of second instance may be appealed to the Swiss Federal Supreme Court if the amount in dispute is at least CHF30,000 or if a ques - tion of fundamental interest is to be decided. The time limit for filing the appeal is 30 days. The appellant may essentially claim that the previous instance has (i) violated federal law, and/or (ii) established the facts manifestly wrongly or in violation of the federal law, provided that such deficiency was relevant to the out - come of the case. The procedure will be conducted in writing and will usually be limited to two written submissions. As in the previous instance, the Swiss Federal Supreme Court may confirm the challenged
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