01 November 2018

Evidence and Proof

Swiss Civil Procedure Law in a Nutshell (Volume 7 of 12)

This blog series provides litigators and corporate counsel from other jurisdictions with a practical understanding of the mechanics, advantages, and limits of litigation before State Courts in Switzerland.

Standard of Proof

In civil litigation, the standard of proof is, typically, full proof. That standard is met if the Court is convinced that a certain presentation of facts is correct. Absolute certainty is, however, not required.

Party-driven Gathering of Evidence

The parties must present to the Court the facts and the related evidence that supports their case (art. 55(1) CPC).

A Court does not usually initiate the taking of evidence and will, thus, only take into account the evidence presented to it by the parties, except in certain specific proceedings such as summary proceedings concerning bankruptcy and decomposition where the Court must establish the facts ex officio (art. 255 lit. b CPC).

Anticipated Consideration of Evidence

A Court is generally required to accept the evidence that a party offers in the requested form and time (art. 152(1) CPC). However, under certain circumstances a Court may anticipate its consideration of evidence and refrain from taking certain evidence presented to it because it does not consider it relevant to the outcome of the case.

Generally, a party must prove its case and demonstrate the existence of all alleged facts from which it derives its rights (art. 8 Swiss Civil Code). Thus, if the party filing a claim cannot produce evidence substantiating its claim, the Court will consider the disputed facts not proven and will not grant the requested relief.

Very Limited Document Disclosure – No Discovery

A document disclosure procedure as practised in common law jurisdictions is alien to Swiss law. Swiss Courts will not grant broad document production requests or fishing expeditions. However, the parties are under a duty to cooperate in the taking of evidence. Accordingly, a Court may order a party, upon specific request of the other party, to produce certain specified documents material to the outcome of the case.

If a party fails to cooperate without justification, the Court is entitled to draw adverse inferences.

Witnesses of Fact

Any person who is not a party to the proceedings may testify on factual matters that he/she has directly witnessed (art. 169 CPC). Since the Court generally does not take evidence ex officio, it only summons witnesses who have been offered by a party and whose testimony it considers relevant to the case. If summoned by the Court, the witness has the duty to appear at the hearing and to tell the truth. Under certain circumstances set out by statutory law, the witness has the right to refuse testimony, for example, where such testimony would expose the witness to criminal prosecution or civil liability, or based on professional confidentiality. However, the witness is, nonetheless, under an obligation to appear before the Court.

No Written Witness Statements

There are no written Witness Statements and the parties are, in principle, not allowed to discuss the case with their witnesses before they testify. As a general rule, a party should therefore refrain from contacting its witnesses. Lawyers are obliged to exercise their profession conscientiously and with care (Art. 12 lit. a BGFA). They must refrain from any conduct that could cause a risk of influencing a witness. Accordingly, witness preparation is a precarious issue as any influencing or manipulation of the witness is impermissible. If there has been any contact with the witness, e.g., for gathering information, parties and lawyers are well advised to disclose such contact in a transparent manner.

Witness Interrogation

It is the Court who questions the witnesses. Generally, the Court first asks witnesses to state their particulars and personal relationship with the parties and any other circumstances that may be relevant to their credibility. Then, the Court invites them to broadly state their factual observations and finally it goes on to ask specific questions. Subsequently, the parties have the possibility to request that further questions are put or, with the consent of the Court, can ask the questions themselves during the hearing (art. 173 CPC).

There is no cross-examination of witnesses in Swiss Court proceedings, and the parties' possibility to ask witnesses further questions does not come anywhere near an Anglo-Saxon style cross-examination.

Expert Witnesses

Only the Courts have the power to appoint experts who are able to give expert evidence. Evidence rendered by party-appointed experts is, in principle, qualified as mere allegation by the appointing party. For this reason, the Courts appoint the experts but hear the parties first. Usually, the parties are invited to suggest an expert or at least comment on the Court's suggestions. The Court instructs the experts and submits the relevant questions to them. The parties have the opportunity to comment on the questions and to request their modification or amendment. The Court may order the expert to render a written report or to present his or her findings orally.

The expert is a person with special expertise whose duty is to assess and confirm disputed questions of facts or foreign law that the Court is not able to determine due to lack of the required knowledge. Experts are under a duty to tell the truth and become liable to prosecution if they commit perjury.

Party Interrogation

A party cannot be a witness. Nonetheless, a Court may question the parties on relevant facts of the case and may even order them ex officio to give evidence, subject to criminal penalties for failure to do so (arts. 191(1), 192(1) CPC). The parties have a duty to cooperate and are obliged to tell the truth, but they may refuse cooperation if certain conditions are met, for example, if the taking of evidence would expose a close associate to criminal prosecution or civil liability, or if it would constitute a breach of professional confidentiality. If a party legitimately refuses cooperation, the Court is not allowed to draw negative inferences (art. 162 CPC).

If a company is a party to Court proceedings, its directors and officers cannot serve as witnesses but are interrogated as a party (art. 159 CPC). However, ordinary employees who are not considered directors or officers can act as witnesses.

Foreign Law Evidence

If foreign law is applicable to a case, the Court needs to establish and consider it ex officio. The Court may establish the foreign law by legal research of its own, by appointing a legal expert or by obtaining the required information from the Swiss Institute of Comparative Law. However, it is also at the Court's discretion to request the parties' cooperation. In financial disputes, the Court may impose the duty to establish the foreign law on the parties (art. 17 PILA).

Author: Thomas Weibel

Prior volumes: Volume 1, Court System and Legal Profession; Volume 2, Jurisdiction;  Volume 3, Commencement and Conduct of Proceedings; Volume 4, Injunctive Relief; Volume 5, Court Decisions; Volume 6, Third parties

What's up next: Volume 8, Appeal Proceedings

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