Switzerland: A Litigation Overview

Switzerland Facilitates Taking of Evidence in Cross-border Civil Proceedings

Introduction

As of 1 January 2026, Switzerland has implemented new rules to facilitate the taking of evidence in international civil proceedings. Most notably, the new framework includes the following changes:

1. Remote witness examinations now only need to be notified to the Federal Office of Justice (FOJ) and no longer require prior authorisation.
2. Parties to foreign civil proceedings are now expressly permitted to voluntarily produce documents, provided the applicable conditions are met.

Until recently, both aspects were associated with some administrative hurdles and legal uncertainty. In particular, obtaining evidence by electronic means for use in foreign civil proceedings required prior authorisation from the FOJ. This requirement could not only delay the proceedings for which the evidence was sought, but failure to comply with it could expose parties to criminal liability under the so-called blocking statute (Article 271 Swiss Criminal Code, SCC), which generally prohibits the performance of acts on behalf of a foreign state on Swiss soil.

In addition to witness examinations, voluntary document production was also subject to uncertainty. While general practice permitted voluntary co-operation in foreign civil proceedings – provided no coercive measures were used – a recent decision of the Federal Supreme Court raised doubts as to whether disclosure of documents containing third-party confidential information could infringe Article 271 SCC. This created hesitancy among Swiss parties facing foreign discovery requests.

In the following, we will outline the key changes introduced by the new provisions and examine their practical implications for parties involved in international civil proceedings.

Examination and hearings by electronic means

The first aspect of the reform relates to remote participation in foreign proceedings. According to the new law, individuals in Switzerland may be examined in foreign civil proceedings via videoconference or other electronic means without prior authorisation. Instead, a notification to the FOJ and the relevant cantonal authority will suffice, provided the following conditions are met:

• Voluntariness: As under the previous regime, participation must be voluntary and the person concerned may withdraw their consent at any time. Compulsory taking of evidence remains subject to the applicable mutual legal assistance provisions.
• Language: Persons concerned may testify in their native language and request translation of essential statements made by other participants in the telephone or videoconference.
• Right to Legal Representation: Persons concerned may be accompanied by legal counsel during the taking of evidence.
• Data Security: The technology used must ensure adequate data security and compliance with data protection requirements.
• Principle of Specialty: The evidence obtained may be used solely for the foreign civil proceedings in question and not for criminal or administrative proceedings.
• Opportunity for Swiss Authorities to Attend: The competent authorities must be given the opportunity to participate, although this right is rarely exercised in practice.

The notification must be submitted in due time and is in any case deemed timely if received at least 14 days before the examination. According to the Swiss Federal Council’s Message, it was a deliberate decision not to impose specific formal requirements for such notifications. They may also be submitted electronically (eg, by simple email without a qualified electronic signature).

Notably, the authorities cannot formally prohibit a remote examination if the notification requirements are met. However, should they take the view that the relevant conditions have not been respected, they may nonetheless initiate criminal proceedings under Article 271 SCC. Despite the more liberal framework, the Swiss blocking statute therefore remains applicable, which means that careful consideration of procedural compliance remains essential. In this context, it may also be considered to obtain a preliminary view from the competent authority in advance.

With regard to its scope, the new provisions apply not only to the taking of evidence but also to all types of examinations and hearings conducted in foreign civil proceedings (but not to the electronic service of judicial documents). In addition, following a corresponding amendment to the Private International Law Act (PILA), the reform applies not only to contracting states of the Hague Evidence Convention but also to non-signatory states.

Voluntary document production

A second key element of the reform concerns voluntary document production. The new Article 11(2) PILA explicitly permits parties based in Switzerland to respond directly to a request from a foreign authority – or opposing counsel in US discovery proceedings – and to produce documents voluntarily, provided that the following requirements are met:

• No Criminal Sanctions: Non-compliance with the request would not trigger criminal sanctions (such as, for example, contempt of court in the requesting jurisdiction). According to the guidance produced by the FOJ, however, there is no threat of criminal sanctions if the requesting court merely threatens procedural sanctions, such as, for example, dismissal of the claim.
• Proper Service: The request has been properly served by means of legal assistance. If the party concerned has a foreign service domicile (eg, with their legal representative in the state where the proceedings are taking place), the legal assistance route is not required. In such cases, service is not considered a sovereign act in Switzerland within the meaning of the provision.

It must be borne in mind that the provision applies solely to parties involved in the foreign proceedings. Third parties (eg, witnesses or experts) located in Switzerland are subject to the stricter procedure for legal assistance.

The party to the foreign proceedings is entitled to comply with the request from the foreign authority without the blocking statute being infringed. However, it must observe the statutory confidentiality obligations, which include manufacturing or trade secrets as well as banking secrecy. As pointed out in the Federal Council’s Message, only a Swiss court can release a person from these obligations. In addition, if the requested party must first obtain the information to be disclosed from a third party, it must observe the restrictions set out in Article 271 SCC.

The new provision does not include a criterion limiting disclosure to files and information that a party can freely dispose of. This "free disposal" requirement was introduced by the Federal Supreme Court in a recent decision under the previous regime (DFT 148 IV 66, cons. 1.4.2). Accordingly, many commentators take the view that the new provisions permit disclosure even where documents are not freely disposable, for example, where they contain confidential information relating to third parties, although future case law will need to clarify the precise relationship between the new framework and the earlier jurisprudence.

Conclusion

In sum, the reform introduces a more liberal framework for participation in foreign civil proceedings. The new rules are therefore likely to reduce administrative hurdles and facilitate remote examinations and voluntary document production, provided the applicable conditions are met.

At the same time, it must be borne in mind that the blocking statute (Article 271 SCC) has not been abolished and remains relevant. Failure to comply with the notification requirements or the applicable conditions may still give rise to criminal liability. Careful procedural co-ordination therefore remains essential in practice.

Finally, it should be noted that the new provisions apply only to civil matters and not to foreign criminal, regulatory and administrative proceedings. Therefore, cross-border evidence taking in civil matters must not be used as a means of circumventing mutual legal assistance requirements in such matters.