15 August 2017

Can Swiss Parties provide evidence to a foreign court?

Blocking statutes, international judicial assistance, authorisations and exceptions

The Swiss blocking statute
Art. 271 of the Swiss Criminal Code (SCC) prohibits carrying out activities on behalf of a foreign state on Swiss territory without lawful authority, where such activities are the responsibility of a public authority or public official. In principle, the obtaining of evidence for court proceedings abroad constitutes the exercise of public powers pursuant to Swiss case law.

International judicial assistance
How can one avoid committing a criminal offence by obtaining evidence? One possibility is international judicial assistance. In this context, the Hague Evidence Convention is relevant. The Convention allows e.g. that witnesses are examined in Switzerland for the purpose of foreign court proceedings.

Special authorisation
The procedure of judicial assistance may be burdensome and time-consuming. Also, it is not always possible to take the evidence in the manner required by the procedural rules applying to the foreign proceedings. In such a case, it is possible to obtain a special authorisation from the Swiss administration under Art. 271 SCC. The administration will not grant such authorisation with regard to activities which, as a matter of principle, are outside the scope of the rules on international judicial assistance.

Which activities are outside the scope of the rules on international judicial assistance?
When assessing whether to pursue the route of international judicial assistance, or whether to apply for a special authorisation, the relevant question is whether the activities concerned are the responsibility of a public authority or public official. Swiss parties to foreign civil proceedings are often required to provide evidence, to fill in questionnaires, or to appear before a foreign court. When do the rules on international judicial assistance apply in these circumstances? The answer depends on whether non-compliance by a party leads to sanctions that are not merely of a procedural nature. If this is the case (e.g. contempt of court), the rules on international judicial assistance apply. If not (e.g. the concerned party would only lose an opportunity to improve its position in the foreign proceedings), Swiss parties are free to collaborate (subject to other relevant rules such as data protection).

The Federal Department of Justice and Police of Switzerland (FDJP) has published four recent cases, giving some guidance for areas of general interest.

Can a Swiss party provide documents?
In the first case, the English High Court of Justice requested a Swiss company to provide documents for the purpose of the English civil proceedings. The FDJP found that the there was no threat of sanctions in case of non-compliance and that, therefore, the rules on international judicial assistance did not apply. As a consequence, an authorisation under Art. 271 SCC was not required (and not possible).

Can a Swiss party participate in discovery proceedings?
In the second case, a Swiss company was involved in discovery proceedings before a United States District Court. The court had issued several subpoenas in which it ordered the Swiss party to deliver documents located in Switzerland and to make specific searches under the threat of criminal sanctions. The FDJP's decision confirms the general point that complying with US discovery requests contained in subpoenas raises difficult issues under the Swiss blocking statutes. Swiss parties must deal with such requests very carefully. According to the FDJP, to the extent data of third-parties is concerned, the collection and transmission of such data to a foreign court is in principle reserved to the authorities in Switzerland. Hence, the rules on international judicial assistance apply. This is not the case for data concerning the Swiss party itself.

In the specific case, the FDJP made a further distinction with regard to third-party data. The Swiss party, at this stage, only needed to disclose (i) whether documents had been found, (ii) what number of documents had been found, and (iii) their nature. The information had to be delivered on an anonymous basis. The FDJP found that the rules on international judicial assistance did not apply to such general requests. At the same time, it stressed that the situation would need to be re-assessed if the Swiss party were obliged to actually transmit documents.

Can a Swiss party deliver an affidavit?
In the third case, a Swiss company requested an authorisation for the delivery of an affidavit to a foreign court. The affidavit was voluntarily issued by the company (without any threat of sanctions) and could not be regarded as an act reserved to a Swiss court. Therefore, an au-thorisation was neither required nor possible in this case.

Can a Swiss party employ experts?
In the fourth case, the English High Court of Justice stated in orders for directions that the parties were allowed to instruct party-appointed experts. The Swiss party asked for a special authorisation to employ such an expert. The FDJP stressed the fact that the expert had not been appointed by the court and that he would not develop any activities in Switzerland, but just render an expert opinion on Swiss practices. To submit an expert report was not an obligation on the Swiss party, but a mere opportunity to enhance its position in the English proceedings. Hence, the rules on international judicial assistance did not apply and no authorisation was required.

The cases published by the FDJP illustrate that there is uncertainty around issues which frequently occur when Swiss parties are involved in foreign proceedings. The main question to be answered is whether the Swiss party has been ordered to provide evidence (or whether it was just granted an opportunity to enhance its position) and whether the non-compliance with such order carries the threat of sanctions. The content of the documents to be provided is also of relevance. Third-party data is in general more sensible. The decisions show that there is a thin red line between licit and illicit in these cases. A careful assessment is required. On the basis of the guidance given by the FDJP, unnecessary applications for special authorisations may be avoided.

Finally, one has to keep in mind that transferring data broad, or submitting it to foreign courts, may trigger other legal issues e.g. under data protection and banking secrecy laws.

Our Litigation Team will be happy to answer any further questions you may have.

Authors: Christian Oetiker, Claudia Walz

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