SWITZERLAND Law and Practice Contributed by: Annemarie Lagger and Amina Chammah, Walder Wyss Ltd
mediation pursuant to Article 213 of the Swiss Civil Procedure Code. In addition, and as set out in 2.4 Jurisdictional Requirements for Product Liability Claims , certain cantons have established commercial courts. If a producer has its registered seat in one of these cantons, an injured party may choose to bring its product liability claim either before the commercial court or the ordinary court, as long as the criteria as set out in 2.4 Jurisdictional Requirements for Product Liabil- ity Claims are met. If a claimant decides to bring a claim before a commercial court, no reconcilia - tion proceedings take place and the claim must be filed directly with the commercial court. 2.6 Rules for Preservation of Evidence in Product Liability Claims There are no specific rules, under Swiss prod - uct liability law or Swiss procedural law, obliging a producer or other distributor to preserve any evidence in product liability cases. There are, as in many other jurisdictions, general evidentiary risks in not preserving evidence. In a product liability case, the claimant is gener - ally required to prove that the defendant’s prod - uct is defective, and that the product defect is the cause of their injury or damage to property. Under Swiss product liability law, the defend - ant (producer or other distributor) has several defences (please refer to 2.12 Defences to Product Liability Claims for further discussion of these). In this light, a producer or other distribu - tor is well advised to preserve documentation (eg, random samples, technical documentation, consumer feedback, etc) and product samples for every batch so that such evidence can be readily produced if necessary. Furthermore, under some sectoral laws, producers may be
required to preserve the conformity declaration or technical documentation. 2.7 Rules for Disclosure of Documents in Product Liability Cases There are no specific rules on the taking of evi - dence in product liability cases, and the Swiss Civil Procedure Code does not provide for any pretrial or discovery mechanisms. Pursuant to the general rules on the taking of evidence in civil procedure, each party must indicate the evidence it wants to rely on in its briefs. To the extent that such evidence is already in its pos - session, the party must file the evidence togeth - er with its briefs. For product liability cases, in particular this holds true for: • product samples; • documentary evidence (technical documenta - tion, risk assessment, customer feedback, etc); To the extent that it is the responsibility of the court to order the taking of evidence, parties must submit respective requests together with precise descriptions of the evidence. In particu - lar, this holds true for: • opinions to be submitted by a court-appoint - ed expert (indication of the questions to be presented); • inspections to be executed by the court (indi - cation of the subject); and • witness testimony (indication of the wit - nesses) – under Swiss law, witnesses will be examined by the court and there are no cross-examinations. • expert opinions; and • digital or other data. Court-Ordered Evidence
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