SWITZERLAND Law and Practice Contributed by: Annemarie Lagger and Amina Chammah, Walder Wyss Ltd
ie, the burden of proof is on the breaching party causing damage, and in sales contracts there is even a strict liability without requirement of fault for direct damage. If there is no such contract – which is usually the case between an injured party and a producer – the injured party would generally try to sue a producer primarily under the Federal Product Liability Act because of its strict liability, whereas under tort law the pro - ducer can only be held liable in case of fault. 2.3 Time Limits for Product Liability Claims The applicable time limit depends on the legal basis that the respective claim is based on. For claims based on the Federal Product Liabil - ity Act, the statute of limitations is three years, starting from the date on which the injured per - son became or should have become aware of the damage, the defect of the product and the identity of the producer (Article 9 of the Federal Product Liability Act). For claims based on contract law (in the context of product liability, most likely a sales contract), the statute of limitations is two years, starting from the day the defective product was delivered (Article 210, Swiss Code of Obligations). For claims based on tort law, the Swiss Code of Obligations provides for two different statutes of limitations: a relative and an absolute one (Arti - cle 60, Swiss Code of Obligations). The relative limitation period is three years, starting from the date on which the injured person became aware of the damage and the person liable for it. The absolute limitation period is ten years for prop - erty damaged and 20 years for personal injury, starting from the date on which the damaging event occurred or ended. This longer limitation period for personal injury under tort law means that a producer may be held liable by an injured
party, even if the limitation period for claims under the Federal Product Liability Act has expired. This absolute limitation period gener - ally runs regardless of whether the injured per - son has any knowledge of the damage and even if the damage has not yet occurred. However, the European Court of Human Rights (ECHR) recently condemned Switzerland once again for its handling of limitation periods, in light of the lengthy latency period of asbestos-related dis - eases and the realistic opportunity for victims to recognise the damage. Therefore, it is unclear how a court would handle future cases in which damages only surface after the expiry of the limi - tation period. 2.4 Jurisdictional Requirements for Product Liability Claims The Swiss Civil Procedure Code determines the locally competent court for a dispute in domes - tic matters, whereas the Swiss Federal Act on Private International Law or the Lugano Con - vention (applicable in civil and commercial mat - ters involving parties from EU or European Free Trade Association (EFTA) states) establishes the territorial jurisdiction of a Swiss court in interna - tional, cross-border disputes. The rules regarding the place of jurisdiction are largely comparable in both domestic and inter - national cases. As a general rule, proceedings can be initiated in the competent court at the domicile or seat of the respondent (eg, at the seat of the liable producer). Depending on the area of private law concerned, a claimant may also initiate proceedings at another forum, eg, in product liability cases, a consumer would be entitled to bring a claim at its own domicile. With regard to subject-matter jurisdiction, it can be said that all cantonal courts in Switzerland have jurisdiction in all areas of the law and apply
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