SWITZERLAND Trends and Developments Contributed by: Yves Klein, Monfrini Bitton Klein
C. Impact on summary proceedings, in particular on the enforcement of judgments and arbitral awards One of the types of proceedings where the admis - sibility of private expert reports is probably having the most significant effect is summary proceedings (Art. 248ff CPC), as under Article 254 of the CPC, only physical records are admissible evidence in such pro - ceedings. Since summary proceedings apply to the recogni - tion of foreign judgments and arbitral awards, interim injunctions and attachment proceedings, the inclusion of private expert reports as physical records under Article 177 of the CPC is a game changer. Indeed, the enforcement process usually begins with the filing of an ex parte attachment application by the creditor. Under Article 271 (1) of the Debt Enforcement and Bankruptcy Act (DEBA), a creditor may request a court to order the attachment of assets located in Swit - zerland to secure a due claim if any of the following • the debtor, with the intention of evading their obligations, conceals their assets, flees or makes preparation for their flight; • the debtor is passing through Switzerland or belongs to the category of persons who visit fairs and markets, for claims that, by their nature, must be fulfilled immediately; • the debtor does not live in Switzerland, and none of the other grounds for an attachment order can be invoked, provided the claim has a sufficient connection with Switzerland or is based on an acknowledgement of debt pursuant to Article 82 of the DEBA; • the creditor holds a provisional or definitive loss certificate against the debtor; or • the creditor holds a title for the definitive setting aside of an objection to a payment order against the debtor. In the first two grounds above, an attachment may also be requested for a claim that is not yet due. grounds of attachment are met: • the debtor has no fixed domicile;
Lastly, in some instances, for example in construction defects cases, experts could be examined as material witnesses by the court. However, even the Federal Court admitted that the situation created by its 2015 ruling on private expert reports was unsatisfactory. Therefore, the Swiss Government proposed, in its dis - patch to Parliament of 2020, to amend the CPC on the issue of private expert reports. B. The admissibility of private expert opinions as evidence since 2025 In the context of the revision of the CPC that entered into force on 1 January 2025, private expert reports are now listed as one of the types of physical records (Art. 177 CPC) that constitute admissible evidence within the meaning of Article 168 (1)(d) of the CPC: “Physical records are documents that are suitable to prove legally significant facts, such as papers, draw - ings, plans, photos, films, audio recordings, electronic files and the like, as well as private expert opinions obtained by the parties.” The CPC, however, does not provide other specific rules in regard of private expert reports. Unlike court-appointed expert reports within the meaning of Article 180ff of the CPC, judges will remain free in their assessment of the evidentiary value of private expert reports. Typically, judges will assess the weight of private expert reports on the basis of all relevant circum - stances, notably the competence and reputation of the experts, their independence from the parties, the instructions given to them, and the processes they followed in drafting their reports. Confronted with contradictory private expert reports produced by the parties, Swiss courts will usually appoint judicial experts. There are indeed several advantages for court-appointed experts over private experts, as they have a duty of independence, are under oath and receive their instructions from the court after a full consultation with the parties.
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