SWITZERLAND Law and Practice Contributed by: Annemarie Lagger and Amina Chammah, Walder Wyss Ltd
2.11 Appeal Mechanisms for Product Liability Claims There are no specific rules governing the appeal mechanisms in product liability cases. The gen - eral procedural rules provide essentially for two appeal opportunities which are relevant for prod - uct liability cases: an initial appeal to the high court of the respective canton, followed by a fur - ther appeal to the Swiss Federal Supreme Court. Appeal to the High Court of the Respective Canton Final and interim decisions and decisions on interim measures of a court of first instance can be appealed if the amount in dispute is at least CHF10,000. The time limit for the filing of an appeal is 30 days in ordinary proceedings and ten days in summary proceedings. The appellant may submit that the first-instance court has (i) applied the law incorrectly, and/or (ii) established the facts incorrectly. The conduct of the proceed - ing is, to a large extent, at the discretion of the appeal instance, ie, the court of second instance will decide whether to conduct a second round of written submissions or to hold an oral hearing. The appeal instance may conclude the proceed - ings either by confirming the challenged decision, by rendering a new decision or by remitting the case to the court of first instance. Appeal to the Swiss Federal Supreme Court The decision of the court of second instance may be appealed to the Swiss Federal Supreme Court if the amount in dispute is at least CHF30,000 or if a question of fundamental interest is to be decided. The time limit for filing the appeal is 30 days. The appellant may essentially claim that the previous instance has (i) violated federal law, and/ or (ii) established the facts manifestly wrongly or in violation of the federal law, provided that such deficiency was relevant to the outcome of the case. The procedure will be conducted in writing
and will usually be limited to two written submis- sions. As in the previous instance, the Swiss Fed - eral Supreme Court may confirm the challenged decision, render a new decision or remit the case to the previous instance. Exception: Decisions of the Commercial Courts There is only one legal remedy against a deci - sion rendered by a commercial court, which is an appeal to the Swiss Federal Supreme Court. The procedure follows the same rules as described above. 2.12 Defences to Product Liability Claims The Federal Product Liability Act provides for the strict liability of a producer. The producer is, however, not liable under the Federal Product Liability Act if it can prove that: • it has not placed the product on the market; • there was no defect when the product was put into circulation; • it did not manufacture the product for sale, or any other form of distribution with an eco - nomic purpose, or manufacture or distribute the product in the course of its professional activity; • the defect is due to the fact that the product complies with binding regulations issued by public authorities; or • the defect could not have been detected according to the state of scientific and tech - nological knowledge at the time the product was put into circulation. Furthermore, the producer of a raw material or part product is not liable under the Act if it can prove that the product defect is due to the con - struction of the product or the instructions of the producer of the end product.
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