SWITZERLAND Law and Practice Contributed by: Annemarie Lagger and Amina Chammah, Walder Wyss Ltd
both cantonal and federal law. There are no specific/specialised courts for product liability claims, which can therefore be brought before any locally competent court. However, the Swiss Civil Procedure Code grants the cantons the option to establish specialised commercial courts, in which the panel of judges is mixed, ie, composed of regular judges and experts (so-called expert judges) in the eco - nomic sector relevant for the case. Four cantons – Zurich, Berne, Aargau and St Gallen – have established such a court, which is part of the cantonal supreme court and serves as a court of first instance for commercial matters. Such com - mercial courts have subject-matter jurisdiction if: • a claim concerns the commercial activity of at least one of the parties to the dispute; • the value in dispute exceeds CHF30,000 or the dispute is not a property dispute; • the parties to the dispute are registered in the Swiss commercial register or a similar foreign registry; and • the dispute does not arise from an employ - ment relationship, the Recruitment Act, the Gender Equality Act, or relate to the renting or leasing of residential and commercial prem - ises or to agricultural leases. Where only the defendant is registered as a legal entity in the commercial register, a claimant can choose to initiate proceedings before either the commercial court or the locally competent ordi - nary court. If a producer has its registered seat in a canton with a commercial court, an injured party can thus choose to bring its product liabil - ity claim before either the commercial court or the ordinary court. If a claiming party has the possibility to choose where to bring its claims, which court is the most
favourable depends on the underlying facts and on the party’s perspective. Commercial courts have the advantage that experts from the rele - vant sectors are part of the judges’ panel, where - as judges of ordinary courts generally do not have expert knowledge in the specific product sector, but their decisions might be more con - sumer friendly. Another difference to take into consideration is that there is only one legal rem - edy against decisions rendered by a commercial court, whereas decisions of the ordinary courts can be appealed against twice (see 2.11 Appeal Mechanisms for Product Liability Claims ). 2.5 Pre-Action Procedures and Requirements for Product Liability Claims Swiss procedural law provides for mandatory reconciliation proceedings. Before initiating the main proceedings, the claimant must submit a reconciliation request to the Conciliation Author - ity (the so-called justice of the peace), following which the Authority will schedule a conciliation hearing. If no agreement can be reached, the Conciliation Authority will issue an authorisation to proceed (ie, to file a claim before a court), which is valid for three months. If a claim is filed before a court without a valid authorisation to proceed, the court will not decide on the merits but dismiss the case for procedural reasons. Despite the mandatory nature of the recon - ciliation proceeding, the Civil Procedure Code provides for a few exceptions, some of which might be relevant in product liability cases. A claimant may unilaterally waive conciliation if the respondent’s registered domicile is outside Switzerland. The parties may mutually agree to waive reconciliation if the amount in dispute is at least CHF100,000. In addition, and irrespective of the amount in dispute, the parties may agree to replace the reconciliation procedure with
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