SWITZERLAND Law and Practice Contributed by: Annemarie Lagger, Amina Chammah and Isabell Schellhas, Walder Wyss Ltd
decision, render a new decision or remit the case to the previous instance. Exception: Decisions of the Commercial Courts There is only one legal remedy against a decision ren - dered by a commercial court, which is an appeal to the Swiss Federal Supreme Court. The procedure fol - lows the same rules as described above. 2.12 Defences to Product Liability Claims The Federal Product Liability Act provides for the strict liability of a producer. The producer is, however, not liable under the Federal Product Liability Act if it can prove that: • it has not placed the product on the market; • there was no defect when the product was put into circulation; • it did not manufacture the product for sale, or any other form of distribution with an economic pur - pose, or manufacture or distribute the product in the course of its professional activity; • the defect is due to the fact that the product complies with binding regulations issued by public authorities; or • the defect could not have been detected according to the state of scientific and technological knowl - edge at the time the product was put into circula - tion. Furthermore, the producer of a raw material or part product is not liable under the Act if it can prove that the product defect is due to the construction of the product or the instructions of the producer of the end product. 2.13 The Impact of Regulatory Compliance on Product Liability Claims A producer’s failure to meet the regulatory require - ments is considered a breach of the product user’s justified safety expectations and can be decisive in determining of the defectiveness of the product. Swiss courts, however, have repeatedly found that adherence to regulatory requirements is the minimum standard only when determining the justified safety expectations. The producer must assess, in each individual case, whether its product meets the user’s safety expectations and may not rely on adherence
to regulatory requirements or the conformity assess - ments of regulatory bodies. 2.14 Rules for Payment of Costs in Product Liability Claims With the enactment of partial revision of the Swiss Civil Procedure Code on 1 January 2025, the court or the conciliation authority may demand that the claim - ing party makes an advance payment not exceed - ing one half of the expected court costs to initiate court proceedings. Prior to the revision, the advance payment could amount to the total of the expected court costs. For certain proceedings, eg, summary proceedings, advance payment of the total estimated court costs may be requested. The payment of the advance is a procedural requirement for bringing an action, meaning that if no payment is made the case will be declared inadmissible. This can be a significant hurdle for claiming parties in general, and in particular in product liability cases involving consumers, given that the amounts to be advanced are calculated based on the amount in dispute and are typically relatively large. It remains to be seen whether halving the poten - tial court costs resulting from the revision will actually facilitate access to justice. The claiming party may be reimbursed for the advance payment if it wins the case as, in Switzerland, the “los - er pays” principle applies. Accordingly, the costs fol - low the event, which means that the losing party must bear the court costs and, on top of that, must com - pensate the successful party for its legal costs. Court costs are determined and allocated by the court ex officio, while party costs are awarded upon request. Advance payments paid by the successful party will be directly refunded from the court. The compensation for legal costs is determined in accordance with a tariff that is primarily based on the amount in dispute. The tariffs vary between cantons, but in the majority of cases the compensation granted does not cover the real legal costs incurred by a party; depending on the amount at stake, the amount pay - able as compensation for legal fees can be higher or lower than the actual costs incurred. If no party succeeds entirely, the costs are allocated in accordance with the outcome of the case and unnec -
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