SWITZERLAND Trends and Developments Contributed by: Yves Klein, Monfrini Bitton Klein
A. The evidentiary power of private expert opinions until the end of 2024 Unlike several cantonal codes prior to the CPC’s entry into force in 2011, the CPC did not contain any provi - sions on private expert reports. Article 168 (1) of the CPClists the following types of admissible evidence: (a) testimony; (b) physical records; (c) inspections; (d) expert opinion; (e) written statements; (f) the examination of, and evidence given by, the parties. Until the end of 2024, only reports of court-appointed experts under Article 183ff of the CPC were consid - ered as evidence. In assessing the probative weight of a court-appointed expert report, the judge cannot depart from its conclusions without compelling rea - sons. As to private expert reports, however, in ruling ATF 141 III 433 of 11 September 2015, the Federal Court found that such reports could not be considered as evidence but rather as mere factual allegations by the parties, a position which was criticised by many scholars and practitioners but which did not vary. This did not mean, however, that private expert reports were useless. Firstly, as pointed out by the Federal Court, the pro - duction of such a report by a party entailed an obliga - tion for the opposing party to refute its allegations in detail, failing which the court would rule in favour of the party producing the expert report, not so much on the basis of its evidentiary power as on the ground that the opposing party had not sufficiently fulfilled its duty of contestation of the factual allegations it contained. In addition, it was admitted that if the expert report was corroborated by substantiated circumstantial evi - dence, it could assist in convincing the court that the facts were proven.
Expert Opinions as Admissible Evidence in Swiss Civil Proceedings: a Game Changer for the Enforcement of Judgments and Arbitral Awards In Switzerland, the enforcement of judgment and arbitral awards, which usually begins with an ex parte request for attachment of assets, is mostly conducted through summary proceedings. In summary proceedings, only documentary evidence is admissible, which makes proof of certain complex facts more difficult. This difficulty is compounded by the inadmissibility of affidavits as evidence, as they are deemed, at best, to be factual allegations by the parties who produce them. Furthermore, until the end of 2024, party expert reports (or private expert reports) were not consid - ered as evidence and were also essentially deemed to be mere party allegations. Only reports of court- appointed experts were deemed to be admissible evi - dence. However, summary proceedings do not allow the judicial appointment of experts. This change at the end of 2024 formed part of the most significant review of the Swiss Civil Procedure Code (CPC) since its entry into force in 2011, which aims to improve its practical efficiency, notably for for - eign litigants. It also encompasses the possibility for cantons of creating international commercial courts which may use English as the language of the pro - ceedings, as well as improving rules on hearings by video conference and on advance court costs. As a result, the role of private expert reports as evidence has been fundamentally changed. This article will review the role of private expert reports until the entry into force of the new provisions (A) and discuss those new rules (B), together with the oppor - tunities they present for litigants, in particular in pro - ceedings of enforcement of judgments and arbitral awards (C).
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