Switzerland

Switzerland’s judiciary is organised by canton, with a unified Federal Supreme Court at the top. Each of the 26 cantons has its own first-instance civil courts and a cantonal High Court for appeals. In most cantons, commercial disputes are heard in the ordinary civil courts (after a mandatory conciliation process, except where exempt).

However, specialised commercial courts operate in four cantons — Zurich, Bern, Aargau, and St. Gallen. These commercial courts serve as sole first-instance courts for commercial cases with an amount in dispute exceeding CHF 30,000. In cantons without a commercial court, commercial cases are handled by the ordinary first instance courts.

Certain matters are dealt with by the commercial courts regardless of the value in dispute (or, in cantons without a commercial court, by the cantonal High Court as sole instance), such as disputes relating to intellectual property, unfair competition, and antitrust law.

While the judiciary in civil and commercial matters is organised by canton, patent disputes are dealt with exclusively by the Federal Patent Court, which operates at a federal level.

Decisions rendered by a cantonal commercial court or of a cantonal High Court acting as the sole instance, as well as decisions of the Federal Patent Court, may be appealed directly to the Swiss Federal Supreme Court, bypassing the cantonal appeal level.

Swiss commercial litigation is governed by the Swiss Code of Civil Procedure (CPC), a federal law effective since 2011 that harmonises civil procedure across all cantons. The CPC applies to all civil proceedings, including commercial cases, and sets out rules on jurisdiction, pleadings, evidence, and appeals.

• Pleadings and procedure. Proceedings usually begin with a statement of claim and a statement of defence. In complex cases, there is often a second written exchange; in simpler ones, the reply and rebuttal are presented orally at the hearing. Claims above CHF 30,000 follow the ordinary procedure, typically before a three-judge panel, while smaller claims use a simplified procedure with a single judge.
• Language. Proceedings are held in the official language of the canton (German, French, Italian, or Romansh), though a 2025 CPC revision now permits English in designated international commercial court cases if the canton provides for it.
• Evidence and disclosure. The CPC contains comprehensive evidence rules (documents, witness testimony, expert opinions, etc.) but no broad pre-trial discovery (see Question 6, below). Each party is expected to present the evidence supporting its case in its submissions.

Before initiating court proceedings in Switzerland, parties should consider several pre-action requirements and strategic steps:

• Mandatory conciliation. In most civil cases, the claimant must first attempt conciliation before a local authority in a brief, informal hearing aimed at settlement. If no agreement is reached, the authority issues an authorisation to proceed, after which the claim may be filed in court. Conciliation is not required for disputes before commercial courts or the Federal Patent Court.
• Interim measures. Depending on the circumstances, courts may grant interim measures, also on an ex parte The claimant will have to demonstrate — on a prima facie basis ­— that their claim is founded and that they will suffer harm that cannot be easily repaired if the measure is not granted. The threshold to obtain an ex parte order is, however, relatively high.
• Attachments. An attractive feature for prospective claimants is the pre-judgment attachment of assets, which allows the claimant to have assets of a foreign debtor attached, provided that certain requirements are met.
• Preliminary taking of evidence. Although there is no pre-trial discovery, courts may allow evidence to be gathered before proceedings begin. For instance, an expert may be appointed to assess alleged construction defects when later examination would be impossible once the case reaches the evidentiary stage.
• Costs. Even though court costs are usually allocated according to the principle of “costs follow the event”, courts may — and usually do — require the claimant to pay an advance on costs, which may place a substantial burden on a prospective claimant.

Switzerland offers a mature and well-structured ADR landscape, with arbitration as the principal ADR method for resolving commercial disputes.

• Arbitration is the predominant ADR method for complex or cross-border commercial disputes. It is governed by Chapter 12 of the Swiss Private International Law Act (PILA) for international cases and Part 3 of the CPC for domestic cases. Switzerland is recognised globally as a leading arbitration seat, offering neutrality, efficiency, and supported by the courts. The Swiss Arbitration Centre administers proceedings under the Swiss Rules of International Arbitration, which is a widely used framework for Swiss-seated arbitration, though other institutions such as the International Chamber of Commerce (ICC) are also frequently chosen.
• Mediation, regulated by the CPC, is voluntary and confidential. It can be initiated before or during litigation, and courts may suspend proceedings to allow mediation. Any resulting settlement may be ratified by the court under Article 217 of the CPC, giving it the same enforceability as a judgment.
• Swiss courts also actively promote settlement. The Commercial Court of Zurich, for instance, routinely holds early conciliation hearings after the defence is filed, presenting its preliminary assessment to encourage agreement. Over 70% of cases before that court are settled at this stage.

The duration of commercial litigation in Switzerland varies by complexity, the court’s caseload, and the parties’ conduct, but first-instance proceedings generally take between one-and-a-half and two years from filing to judgment.

Under the ordinary procedure (for claims above CHF 30,000), the proceedings typically involve two written submissions by the parties and one main hearing. Straightforward cases may reach trial after approximately 9–12 months, with a judgment to be expected after approximately 18 months. Complex matters involving extensive evidence or multiple expert reports — common in construction disputes — can take up to three to four years.

Where required, the conciliation procedure adds roughly three to four months at the outset. Urgent matters — such as interim injunctions — are handled in summary proceedings within days or weeks.

Switzerland does not have broad common-law-style discovery. Each party is primarily responsible for submitting the evidence that supports its case, and there is no general duty to volunteer information or documents adverse to one’s own position.

• Party-driven evidence. The litigation process is adversarial in that parties present the facts and evidence they rely on. With the initial briefs, parties file supporting documents that back their allegations. There is no automatic disclosure of all relevant documents; in particular, no requirement to hand over documents harmful to one’s case.
• Document production requests. A party can ask the court to order the opponent or a third party to produce a specific document or category of documents if that evidence is relevant to a contested issue. However, such requests must be very specific — Swiss courts do not allow “fishing expeditions” or broad discovery demands. The requesting party must identify the document or describe it with sufficient specificity. Importantly, the document must appear necessary to prove a specific, material fact that is already alleged and disputed, not to explore potential claims or build a case from scratch.

Yes, Swiss courts have authority to compel witnesses to appear at a hearing and give testimony, but the manner of examination differs from common law “cross-examination”.

• A witness who fails to appear without valid excuse may be fined or brought before the court by police order. Witnesses are legally obliged to tell the truth and may refuse to testify only on limited grounds, such as close family relationships, professional secrecy, or risk of self-incrimination.
• However, Switzerland does not follow the common-law model of adversarial cross-examination. Testimony is conducted under the control of the judge, who leads the questioning. After the judge’s examination, the parties or their lawyers may propose follow-up questions, which the judge may ask directly or allow counsel to pose under supervision. The judge may disallow repetitive or leading questions and ensure that witnesses are not pressured or harassed.

Swiss courts follow the “loser pays” principle, but they have some discretion in allocating costs. The main rules on costs (court fees and compensation for attorneys’ fees) are as follows:

• Generally, the unsuccessful party is ordered to bear the costs and reimburse the winning party for legal fees. If none of the parties prevails in full, the court will usually apportion costs in proportion to each party’s success. In the case of a settlement, costs are allocated as agreed by the parties, whereby it is common for the parties to split court costs equally and waive compensation for legal fees.
• The amount of recoverable legal costs is not based on actual lawyers’ fees but on cantonal fee tariffs, which set standard amounts according to the value in dispute. These tariffs often do not cover a party’s real expenses, except in very high-value cases where compensation may exceed actual costs. Within these limits, courts have discretion to adjust fees up or down depending on the effort involved, the parties’ conduct, and the case’s complexity.
• Courts may also depart from the standard allocation on equitable grounds, if exceptional circumstances make a strict cost allocation based on the outcome unfair.

Swiss law provides several interim remedies to protect a party’s rights before or during litigation. The most common are interim injunctions under the CPC and attachments (freezing orders) under the Debt Enforcement and Bankruptcy Act (DEBA).

• A party may request an interim injunction to preserve the status quo or prevent imminent harm. The applicant must demonstrate a prima facie claim, a risk of irreparable harm, and urgency.
• Courts may order a party to refrain from doing certain acts or, exceptionally, to perform the parties’ contract. The court may also issue orders against third parties or authorities such as the Land Register or the Commercial Register (in order to prevent certain registrations from being made).
• In particularly urgent cases, courts may issue ex parte orders, followed by an inter partes hearing or by a written reply from the opponent, upon which the court will reassess the situation and either confirm, modify or lift its order.
• For monetary claims, a court may, on an ex parte basis, order the attachment of the debtor’s Swiss assets, such as bank accounts or property, up to the value of the creditor’s Attachments are commonly granted if the creditor shows prima facie evidence of a due claim and a statutory ground for attachment.
• Once an interim measure or attachment is in place, the claimant is under a duty to commence proceedings on the merits (if such proceedings are not already pending) within a certain time limit, failing which the measure or attachment will be lifted.

Switzerland has a very arbitration-friendly legal framework, with courts being strongly supportive of arbitration and consistently upholding the principle of party autonomy. The Swiss judiciary adopts a non-interventionist approach, intervening only where expressly authorised by law.

• Two distinct legal regimes govern arbitration in Switzerland. International arbitration is regulated by Chapter 12 of PILA (Articles 176–194), while domestic arbitration is governed by Part 3 of the CPC (Articles 353–399).
• Although Swiss arbitration law is not formally based on the UNCITRAL Model Law, it embodies the same key principles — competence–competence, separability of the arbitration agreement, party autonomy, and limited judicial review. Swiss courts decline jurisdiction where an arbitration clause exists, unless it is manifestly void, inoperative, or incapable of being performed. They may also assist arbitral tribunals by appointing or removing arbitrators, ordering interim measures, taking evidence, and enforcing arbitral orders.
• Swiss-seated arbitral awards are final and binding, and the Federal Supreme Court is the sole instance to set aside arbitral awards, based on very limited grounds only.

Yes, arbitral tribunals seated in Switzerland have express authority to grant interim and conservatory measures, unless the parties have agreed otherwise.

While arbitral tribunals can order interim relief directly, they lack coercive enforcement powers. Consequently, state courts assist by enforcing arbitral interim orders. This cooperation ensures the effectiveness of arbitral remedies, particularly where third parties or Swiss-based assets are involved.

Parties may also seek interim relief from Swiss courts before the constitution of the tribunal or concurrently.

In Switzerland, arbitral awards are final and binding and can be set aside only on very limited grounds. An international arbitral award will be set aside by the Swiss Federal Supreme Court only if:

• the arbitral tribunal was improperly constituted;
• it wrongly accepted or declined jurisdiction;
• it ruled beyond the claims submitted or failed to decide part of them;
• there was a violation of the right to be heard or of equal treatment of the parties; or
• the award is incompatible with Swiss public policy.

On average, less than 10% of the set-aside applications are successful. It is extremely rare that an award will be set aside based on substantive public policy.

Switzerland is party to several key international instruments governing the recognition and enforcement of foreign judgments and arbitral awards:

• For foreign court judgments, Switzerland’s main multilateral framework is the Lugano Convention, which mirrors the former EU Brussels I Regulation. It governs jurisdiction and the mutual recognition and enforcement of civil and commercial judgments between Switzerland, the EU, Norway, and Iceland. Recognition is largely automatic, and enforcement (exequatur) requires only a simplified declaration before the competent Swiss court.
• In addition, Switzerland has ratified the Hague Convention on Choice of Court Agreements (2005), which entered into force for Switzerland on 1 January 2025. This convention ensures the recognition and enforcement of judgments rendered by courts designated in an exclusive jurisdiction agreement, particularly enhancing post-Brexit enforcement between Switzerland and the United Kingdom.
• For arbitral awards, Switzerland is a long-standing party to the 1958 New York Convention, which it applies liberally, enforcing foreign awards swiftly and subject only to the limited defences in Article V. It is also a contracting state to the International Centre for Settlement of Investment Disputes (ICSID) Convention, under which investor–state awards are enforceable as final Swiss judgments.
• Where no treaty applies, enforcement of foreign judgments and awards is governed by PILA, which codifies generous recognition principles consistent with international standards.

In Switzerland, foreign judgments in civil and commercial matters are enforceable if they meet the applicable formal and procedural requirements. Both monetary and non-monetary judgments can be enforced through established statutory mechanisms.

• Enforceable judgments include final orders for payment of money, delivery of goods, or performance or cessation of an act. Court-approved settlements and arbitral awards are also enforceable in the same manner as judgments.
• Applicable legal basis. Enforcement depends on an international treaty (e.g. the Lugano Convention) or, in the absence of a treaty, on PILA. Under PILA, recognition requires a final and enforceable decision rendered by a court with proper jurisdiction and in compliance with due process.
• Monetary and non-monetary relief. Judgments ordering payment (provided the debtor has assets in Switzerland) or specific performance are enforceable. Declaratory judgments, while not enforceable due to their lack of operative content, may still be recognised and produce legal effects.
• Excluded or limited judgments.
  • Judgments that are not final or remain subject to ordinary appeal are generally not enforceable.
  • Under the Lugano Convention, however, enforcement may be granted even if the judgment is not final, provided that it is enforceable in the state of origin.
  • Judgments relating to public law matters, such as criminal penalties, administrative fines, or tax obligations, are excluded.
  • Enforcement may also be refused if the judgment violates Swiss public policy, for example in cases involving excessive punitive damages or manifest procedural unfairness.

For foreign court judgments from Lugano Convention states (EU, Norway, Iceland), recognition is automatic and enforcement follows a simplified process. The creditor applies to the competent cantonal court for a declaration of enforceability, enclosing an authenticated judgment and the Article 54 certificate. Once granted, the decision is served on the debtor, who may appeal within 30 days, after which the judgment is enforceable across Switzerland as if domestic.

For non-Lugano judgments, enforcement is governed by PILA. The applicant must show the foreign decision is final, enforceable, rendered by a court with proper jurisdiction (under Swiss standards), and consistent with Swiss public policy. Default judgments require proof of proper service and the right to be heard.

Foreign arbitral awards are recognised and enforced under the New York Convention, to which Switzerland is a party. The applicant submits the authenticated or certified copies of the award and arbitration agreement (Articles IV–V of the New York Convention). Swiss courts refuse enforcement only on the narrow grounds in Article V, such as lack of due process or violation of public policy. Swiss-seated awards are enforceable directly, without exequatur, as domestic judgments.

In Switzerland, the method of execution depends on whether the judgment or arbitral award orders payment of money or performance of another obligation.

For monetary claims, enforcement is governed by DEBA. The creditor initiates proceedings with the competent debt enforcement office at the debtor’s Swiss domicile. If the debtor is abroad, jurisdiction usually requires an attachment of assets in Switzerland. If the debtor does not object within 10 days, the process continues to seizure (for individuals) or bankruptcy (for companies). If an objection is filed, the creditor may request its removal by presenting the enforceable judgment or award.

Execution may involve seizure of property, bank accounts, receivables, or real estate, followed by auction and distribution of proceeds. Secured creditors may realise pledged or mortgaged assets. Creditors can also request attachment of assets as a precautionary measure; however, in subsequent insolvency they are treated as unsecured creditors.

For non-monetary obligations, the enforcement court may order specific performance, authorise substitute performance at the debtor’s expense, seek administrative assistance, or impose coercive fines under Article 292 of the Swiss Criminal Code to compel compliance.

Swiss law provides several effective interim measures to secure a creditor’s rights pending enforcement of a judgment or arbitral award:

• The most common and powerful measure is the attachment provided by DEBA, which is available to secure claims for payment of money. On application by the creditor, a Swiss court may order on an ex parte basis the freezing of the debtor’s assets located in Switzerland, such as bank accounts, securities, receivables, or real estate, up to the amount of the claim; however, it is for the creditor to designate and identify with sufficient precision the assets to be attached.
• For non-monetary judgments, such as orders for delivery of goods, cessation of acts, or specific performance, courts may issue interim injunctions to preserve the creditor’s rights without pre-empting the final decision. Typical measures include prohibitions on asset disposal (e.g. blocking land or commercial register entries), seizure or deposit of movable items, sealing of premises or goods, and orders to third parties or authorities to take precautionary steps.

Proceeding on the assumptions outlined in the Model Answer, would a court in this jurisdiction recognise and enforce the arbitral award under the New York Convention?

In particular:

• Does the award fall within the scope of Article V(1) of the Convention, or would any of the grounds in Article V(1) justify refusal on the assumed facts?
• Is the subject matter of the dispute capable of settlement by arbitration under domestic law for the purposes of Article V(2)(a)?
• Would recognition or enforcement of the award be contrary to public policy within the meaning of Article V(2)(b)?

Response

Proceeding strictly on the stated assumptions, a Swiss court acting as the enforcing court under the New York Convention would, in principle, recognise and enforce the arbitral award. In Switzerland, recognition and enforcement of foreign arbitral awards are governed by Article 194 of the Swiss Private International Law Act (PILA), which refers to the New York Convention; the grounds for refusal are exhaustively set out in Article V of the Convention.

Article V(1): scope and validity

On the assumed facts, the arbitral tribunal issued a final award ordering payment of the contractually agreed sum and interest. The decision therefore qualifies as an “arbitral award” within the meaning of the New York Convention (i.e. a binding dispositive decision).

Under Article V(1)(a) of the Convention, recognition and enforcement may be refused if the arbitration agreement is invalid under the law chosen by the parties or, failing such a choice, under the law of the seat of the arbitration. Here, it is expressly assumed that the law governing the arbitration agreement and the law of the seat treat the clause and the resulting award as valid. The agreement is also assumed to be in writing. On these assumptions, a Swiss enforcing court would have no basis to refuse enforcement under Article V(1)(a).

Article V(1)(c) permits refusal if the award deals with matters beyond the scope of the submission to arbitration. On the assumed facts, the tribunal’s mandate is expressly limited to confirming that the foreign court judgment is final and unpaid after the contractually specified period and to ordering payment of the contractually agreed sum and interest, without revisiting or re‑litigating the underlying merits of the court dispute. The award therefore falls squarely within the scope of what the parties submitted to arbitration. Any contention that the arbitration is “in substance” an attempt to enforce a court judgment would, on these assumptions, not justify refusal under Article V(1)(c): the tribunal does not enforce the judgment as a judgment, nor does it review its merits, but determines and enforces a separate contractual obligation triggered by non-payment. Whether such a mechanism is compatible with the Swiss legal order, if at all, is a question for the narrow ordre public analysis under Article V(2)(b), not for a merits-based scope review.

Article V(1)(e) concerns whether the award is binding or has been set aside or suspended at the seat. It is assumed that the award is final and binding and has not been set aside or suspended. Accordingly, no ground for refusal arises under Article V(1)(e). There is likewise no suggestion on the assumed facts of denial of due process (Article V(1)(b)) or irregular composition of the tribunal or arbitral procedure (Article V(1)(d)). Consistent with Swiss Federal Supreme Court case law, a Swiss enforcing court would apply Article V of the Convention restrictively and would not undertake a substantive re‑examination (révision au fond) of the award.

Article V(2)(a): arbitrability under Swiss law

Under Article V(2)(a) of the Convention, the Swiss court must consider whether the subject matter of the difference is capable of settlement by arbitration under Swiss law. In Swiss international arbitration law, Article 177(1) PILA adopts a broad concept of objective arbitrability: any claim of a pecuniary nature may be submitted to arbitration.

On the assumed facts, the matter referred to arbitration is a contractual monetary obligation (together with interest) arising upon non-payment of the judgment sum. This is plainly a pecuniary claim and therefore arbitrable under Swiss law for the purposes of Article V(2)(a). The fact that the contractual trigger for the obligation is the existence and continued non-payment of a final foreign court judgment does not alter the character of the claim as a contractual claim for payment, particularly given that the tribunal’s mandate is confined to verifying objective conditions and applying agreed contractual consequences, without re-litigating the court dispute.

Article V(2)(b): Swiss public policy (ordre public)

Article V(2)(b) permits refusal of recognition or enforcement if doing so would be contrary to Swiss public policy (ordre public). Swiss case law construes this exception narrowly in the New York Convention context. The enforcement-related ordre public is considered “mitigated” and is engaged only where enforcement would result in a serious incompatibility with fundamental principles of the Swiss legal order.

On the assumed facts, enforcement of the award should not offend Swiss ordre public. The award gives effect to party autonomy and to a commercially agreed allocation of risk pursuant to which non-payment of a final judgment triggers a separate contractual payment obligation. While the mechanism may be unusual, it does not approach the high ordre public threshold applied by Swiss courts.

The principal objection likely to be raised in a Swiss setting is a procedural ordre public argument framed in terms of res judicata or abuse of process, namely that the arbitral award impermissibly “duplicates” the foreign court judgment. Swiss law recognises that a failure to respect res judicata can, in appropriate circumstances, amount to a violation of procedural ordre public, including in the relationship between a Swiss arbitral tribunal and a foreign state court judgment, provided that the foreign judgment is itself capable of recognition in Switzerland. However, under Swiss doctrine and case law, res judicata requires, in substance, identity of parties and identity of the claim or relief sought as determined by the underlying life facts, not merely the fact that two instruments lead to the same payment amount.

On the assumed structure, these conditions are not met. The arbitral claim is not a re-litigation of the court cause of action, but a distinct contractual claim that arises upon a new operative fact, namely the continued non-payment of the judgment after expiry of the contractual grace period. The award does not contradict or undermine the foreign judgment; to the contrary, it presupposes its finality and gives effect to the parties’ agreed contractual consequences of non-payment. In addition, the assumptions include contractual safeguards against double recovery. In these circumstances, it is difficult to characterise enforcement of the award in Switzerland as an intolerable infringement of fundamental Swiss procedural principles.

Conclusion

On the assumed facts, a Swiss court would recognise and enforce the arbitral award under the New York Convention as incorporated via Article 194 PILA. None of the grounds for refusal under Article V(1) of the Convention is engaged on the assumptions; the subject matter of the dispute is arbitrable under Swiss law within the meaning of Article V(2)(a) (Article 177(1) PILA); and enforcement would not be contrary to Swiss public policy within the meaning of Article V(2)(b), which is applied restrictively in Swiss practice.