Evidence rules in Swiss proceedings

Swiss proceedings are front-loaded. All allegations must be made in written pleadings, each allegation individually corroborated by a specific reference to the underlying evidence. Trials or hearings are comparably short. Also, there is no discovery. While this makes the proceedings lean and cost-efficient, it also means that parties must, in principle, adduce all the evidence on which they intend to base their claim. Having the right documents available – or being able to obtain and produce them – is therefore of paramount importance:

• While there exists a duty to both parties to the proceedings and third parties to produce documents – to the extent they are not covered by privilege or other secrecy rules –, that document production duty is limited to the production of select documents that the requesting party must specify in detail in its written pleadings.
• That does not mean that only one or two documents can be requested for production. However, the request must be precise and limited in scope. While, therefore, it is possible to request the production of “all minutes of board meetings that took place between time x and time z,” the request to produce “all documents evidencing fact x” or “all the accounting documents from the period between time x and time z” are too far-reaching and not specific enough.
• Fishing expeditions are, in other words, not considered permissible. As a general rule, document production can be used to prove, or disprove, specific facts that were, before, duly alleged in the written briefs. By contrast, the purpose of document production is not to bring to light the factual basis of the requesting party's case that will only allow that party to subsequently formulate due allegations on which it can base its case and prayers for relief.

This means, for one thing, that pre-trial discovery cannot be used as a costly means to increase the pressure on a counterparty. In addition, it is not possible to launch litigation based on suspicion or speculation and only then substantiate the case, and the prayers for relief, once the facts are on the table. Each party must, in essence, deal with the evidence it holds in its own hands. As a result, parties may need to resort to other avenues (such as criminal complaints or foreign proceedings, such as Section 1782 proceedings under US civil procedure law) to obtain evidence before the cut-off date for making substantiated allegations and filing evidence in the proceedings.

Also, it is important to make allegations in the proceedings in a manner that allows for the incorporation of new insights based on a document production after the first exchange of written pleadings – without having to withdraw all the previous allegations, and without having missed the cut-off date. This requires careful planning and thought-through procedural requests to the court.

On the receiving end of a document production request, it is equally important to take the necessary precautions so that a request by the counterparty, if made and successful, will not disprove the entirety of the allegations made in the written pleadings. What is more, the inability to abide by the terms of a document production order may, where it is reproachable, result in negative inferences by the court, or even the assumption that the counterparty's allegations are true.

Witness evidence plays a somewhat subordinate role since it is typically considered to be somewhat unreliable. Courts are reluctant to summon more witnesses than necessary, and witness examinations that last more than one or two hours are the rare exception. There is no cross-examination, and the questions to the witnesses are typically asked by, or via, the court. Witness examinations are, often, slowed down even more by the need to have both questions and answers translated and recorded. Witnesses may also rely on privileges or secrecy obligations.

Other evidence available in Swiss court proceedings encompasses expert opinions, visual inspection, and – in specific instances – evidence by the parties themselves.

The paramount evidence rule in Swiss proceedings, however, is not procedural, but substantive, in nature. Art. 8 of the Swiss Civil Code states the following: "Unless the law provides otherwise, the burden of proving the existence of an alleged fact shall rest on the person who derives rights from that fact." This rule does not allocate any procedural duties. Instead, it makes clear which of the parties bears the legal consequences should a disputed fact remain unproven.

Should you have any relevant questions, please feel free to contact us. 

Author: Thomas Weibel

Categories: China Desk, Litigation and Arbitration