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Procedural acts are actions that serve proceedings before a
court or an ad-ministrative authority and that are performed by the parties or
by the judicial or an administrative authority in the course of the proceedings
or as a preparatory measure thereof. They include acts such as notifying a party
of an action filed with a court, delivering court summons to appear as party or
witness and the taking of evidence such as depositions of parties or of
witnesses or re-quests for the production of documents. Under
Swiss law, various procedural acts are reserved to be performed by the State and
may not be performed by the parties to judicial proceedings themselves. If such
procedural acts need to be performed in support of judicial proceedings in
foreign countries, the rules regarding international mutual assistance need to
be applied. In order to prevent these acts from being performed by
non-authorized individuals or foreign authorities on Swiss territory, the Swiss
Penal Code (SPC) provides that whoever, without being authorized, performs acts
for a foreign state on Swiss territory that are reserved to an authority or an
official, shall be punished with imprisonment and, in serious cases, sentenced
to the penitentiary (Article 271 Swiss Penal Code – SPC).
Conflicts often occur when documents related to judicial proceedings in the
United States are served to parties in Switzerland or when evidence (whether in
documentary form or through the depositions of witnesses) to be used in judicial
proceedings in the United States is taken in Switzerland.
The administration of justice including service of process is
a function reserved to the courts; this is contrary to the situation in the
United States where the parties are charged with that duty. To this date, there
is no federal law governing mutual judicial assistance; hence, the procedural
laws of each Canton primarily govern the execution of a requested procedural
action. This may result in difficulties if procedural actions for the same
foreign proceeding have to be undertaken in different cantonal jurisdictions.
It is strongly recommended to use the serving methods
provided by the applicable multinational and bilateral treaties. While joining
such treaties, Switzerland has constantly demanded that all foreign requests be
made by official authorities and not by private parties. Nonetheless,
Switzerland does not object if foreign consular or diplomatic agents serve their
citizens in Switzerland by direct mail or physical delivery as long as no
coercion is applied. Go to:
Mutual assistance in Switzerland In Switzerland, other
than in the United States, a deposition taken by private persons, such as
attorneys, is illegal and may be punished with imprisonment or penitentiary. The
reason for this is due to a fundamentally different approach regarding the
hearing of witnesses (deposition) between the U.S.A. and Switzerland. Under
Swiss procedural laws, it is an act of the State to hear witnesses, i.e. it is
the court that puts questions to the witness and records the answers. The
parties and their attorneys may be present and may ask additional questions,
however, only with the permission of the Court. If someone takes depositions in
Switzerland intended to be used in foreign court proceedings, that person is
deemed to act in favor of a foreign state. Such an act violates the sovereignty
of the Swiss Confederation. Whoever takes such actions for a foreign state on
Swiss territory without prior approval of the competent authority is liable to
prosecution, as described above, in accordance with Art. 271 SPC. It does not
matter whether the witness giving the testimony consents to the deposition or
not. Moreover, Swiss law prohibits so-called “economic
intelligence service”, i.e. the search for manufacturing or business secrets in
order to make them accessible to a foreign official agency, a foreign
organization, a private enterprise, or their agents, or the mere fact of making
manufacturing or business secrets accessible to such entities or their agents
(Art. 273 SPC). This prohibition may be in conflict (and indeed already often
was in conflict in the past) with a party's duty under U.S. procedural law to
produce documents in proceedings pending in a U.S. court. Therefore, a person
submitting documents to an American court or to a party involved in judicial
proceedings in the U.S. may be liable to prosecution in Switzerland if such
documents contain a manufacturing or business secret and if they are made
available to a foreign official agency, a foreign organization, a private
enterprise, or their agents. In addition, other legal
provisions need to be observed in case of disclosure of information, such as, in
particular, data protection (go to:
Data protection) and
banking laws.
Applicable law
Detailed information
1.
Prohibited acts for a foreign state
2.
Economic intelligence service
3.
Consequences
Frequently asked questions
Useful links
This site has been prepared by
Martin Frey, LL.M.
Baker & McKenzie Zurich
Zollikerstrasse 225
Postfach
8034 Zurich
Switzerland
Tel: + 41 (44) 384 14 14
Fax: +41 (44) 384 12 84
E-mail: martin.frey@bakernet.com
www.bakernet.com
April 2006 | 
