When parties to civil and commercial litigation procedures in foreign countries need to obtain evidence situated in Switzerland, they have - in principle - two ways at their disposal: the relevant parties may rely on the power and the proceeding of the court hearing the case, or they may seek - via the court hearing the case - the assistance of a Swiss court to obtain the evidence. The first way may be relevant if the evidence is in control of a party (i.e. the claimant or the defendant) to the main proceedings.
If, however, a third party in Switerzland is in control of the evidence, then the gathering of such evidence for the use in foreign civil and commercial proceedings must be processed in accordance with the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of March 18,1970, or, in some cases, with such other convention or Swiss federal law that may apply, depending on the requesting party. Where evidence located in Switzerland is gathered in disregard of these rules, all legal and natural persons involved in such gathering run the risk of a criminal conviction for violation of several Swiss blocking statutes, namely of Articles 271 (I) of the Swiss Penal Code (prohibited acts for foreign states) and others. In an exemplary case that became public in 2001, two Austrian notaries public who gathered evidence about a testator's bank assets in Switzerland were convicted of economic espionage (Article 273 of the Swiss PC).
The procedure for taking evidence in accordance with the relevant convention raises plenty of questions, only some of which are answered by either a declaration of Switzerland to the relevant convention or by court precedent. The most eminent field of conflict and insecurity concerns the dealing of Swiss authorities with pre-trial discovery requests from abroad. According to a reservation made by Switzerland at the ratification of the 1970 Hague Convention, letters of request issued for the purpose of obtaining pre-trial discovery of documents will not be executed if:
the request has no direct and necessary link with the proceedings in question; or
a person is required to indicate what documents relating to the case are or were in his/her possession or keeping are at his/her disposal; or
a person is required to produce documents other than those mentioned in the request for legal assistance, which are probably in his/her possession or keeping or at his/her disposal; or
the valid interests of the person from whom evidence is requested may be compromised.
At swisslitigator.com (a service by Advokatur GTK GmbH) we advise foreign parties on the the consequences of the above reservations and other questions related to the taking of evidence in Switzerland in civil and commercial matters. We also represent clients in such procedures vis-à-vis the Swiss Central Authority, the Swiss District Court and the Swiss Party holding the evidence.