SWITZERLAND Trends and Developments Contributed by: Yves Klein, Monfrini Bitton Klein
The title for the definitive setting aside of an objection to a payment order may be: • an enforceable domestic judgment or arbitral award; • an enforceable foreign judgment issued in a state party to the Lugano Convention; • a final foreign judgment in another state; • a foreign arbitral award; or • an official record within the meaning of Article 347 of the CPC or Article 57 of the Lugano Convention. The creditor needs to show probable cause that the claim exists (and is due, as the case may be), that there is ground for an attachment within the meaning of Article 271 of the DEBA and that an asset of the debtor within the jurisdiction of the court exists. In certain circumstances, in a doctrine known as Durchgriff (transparency), assets formally in the name of a third party may be attached for the obligations of a debtor with which the third party forms an eco - nomic identity. This doctrine presupposes, first of all, that the persons are identical in accordance with eco - nomic reality or, in any case, that one legal entity has economic control over the other; secondly, the duality must be invoked abusively, ie, in order to obtain an unjustified advantage. Both the proceedings of ex parte application for attachment and the proceedings of objection to the attachment are conducted through summary pro - ceedings. This means that only physical records as defined under Article 177 of the CPC are admissible. Since 2025, those physical records include private expert reports.
Therefore, since 2025, creditors can produce in sup - port of an attachment request a forensic report that will, for example, establish beneficial ownership of certain assets when applying the Durchgriff doctrine. Interestingly, since the appointment of experts by the court and examination of witnesses, including party- appointed experts, is not possible under summary proceedings, the court needs to forge its opinion on the weight to be given to expert reports on the basis of their content. This opinion thus needs to include an assessment of all relevant circumstances, 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. It is only at a much later stage in the dispute that the defendant can initiate ordinary proceedings to attempt to challenge the existence of the claim, or the enforce - ability of the foreign judgment or arbitral award, and be granted the availability of the full range of eviden - tiary proceedings. Conclusion The admissibility of private expert reports in Swiss civil proceedings presents litigants with new oppor - tunities, especially to creditors enforcing judgments or arbitral awards. In setting the principles on how to assess the weight of private expert reports, Swiss courts will draw their inspiration from former cantonal case law and prac - tice, the rules applying to international arbitration, and the practice of neighbouring or more distant countries. For Swiss practitioners, the coming months and years will be fascinating as the rules applying to private expert reports become more clearly defined.
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