Forgot your password?
Please enter your email & we will send your password to you:
My Account:
Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
I. Introduction
1. The power to enact private laws is split between the Swiss Confederation and its 26 cantons. While the Confederation legislates in the field of substantive civil law, the cantons have legislative responsibility for civil procedure and judicial organization. Thus, each canton has its own code of civil procedure ('CCP') and a code of judicial organization.1 There are, however, some federal statutes and decisions of the Federal Supreme Court that contain procedural rules which take precedence over cantonal law and are considered federal law despite their procedural nature. For instance, the basic rule on the allocation of the burden of proof is found in Article 8 of the Swiss Civil Code ('CC').
2. Litigation generally starts in the cantonal courts. Each of the 26 cantons has its own court structure, but all cantonal courts administer both cantonal and federal law. The Federal Supreme Court, which is the only federal court, serves as court of last instance in the administration of federal law. Given that procedural law is in principle a matter for the cantons, the Federal Supreme Court does not review the application of procedural rules unless they form part of federal substantive law, whose application it oversees in order to ensure uniformity.2 Given the separate competence of each canton to adopt laws concerning civil procedure, there are no uniform rules of judicial procedure, even in matters such as document production. In reality, however, both cantonal legislation and the principles applied by the courts display considerable similarity and, although there may be differences between the codes of civil procedure in the different cantons, the principles described below are widely applicable in all 26 cantons.
3. For domestic arbitration, the so-called Concordat (i.e. an intercantonal arbitration convention) embodies Switzerland's uniform domestic arbitration law.3 It applies to arbitrations in Switzerland between two (or more) Swiss parties.4 During the 1970s and 1980s, numerous provisions in the Concordat proved unacceptable in international arbitration and this led to the adoption of Chapter Twelve of the Private International Law Act ('PILA'), which came into force on 1 January 1989 specifically to govern international arbitrations. [Page22:]
II. Document Production In State Court Proceedings
A. General remarks
4. Generally, and in particular in commercial matters, parties exchange two briefs each: the statement of claim, the respondent's answer to the complaint, the claimant's reply, and the respondent's rejoinder.5 If new factual allegations are made in the rejoinder, the court may allow the claimant to respond with a further brief.6 Available documentary evidence should normally be attached to the briefs, although this is not compulsory.7
5. The Federal Supreme Court has held that as a matter of federal law the claimant must plead in detail the fact pattern on which its claim is based so as to make it possible to take evidence.8 Similarly, the answer must address all the allegations made by the claimant, pointing out whether they are admitted or denied. Also, the respondent must submit its own view of the case, attempting to rebut or render less likely the factual allegations made by the claimant. This duty to plead factual circumstances in detail (Substantiierungspflicht) applies mutatis mutandis to a counterclaim. It is cantonal procedural law, on the other hand, that determines the deadline by which a properly detailed pleading as to the facts is required.9 In some cantons, after the exchange of briefs there is a hearing at which oral pleadings of fact are permitted. Otherwise, no new allegations of fact may be made after briefs have been exchanged, unless they concern new or newly discovered facts, or facts that may be easily proved.
B. When evidence is taken
6. Usually-although there may be exceptions-evidence is taken only after the pleadings are completed (i.e. after the exchanges of briefs and oral pleadings on the facts). At this stage, the court normally determines the factual issues on which evidence will be taken and invites the parties to identify the types of evidence, such as witnesses and documents. Only allegations previously contradicted in sufficient detail must be proved, because uncontested allegations or allegations that have been contradicted without any details being given are deemed to be true.10 As a general rule, under Article 8 of the Civil Code, a party has the burden of proving the factual circumstances on which its claims are based.
C. Documentary evidence
7. Swiss legal writers share the view widely held in international commercial arbitration11 that documentary evidence is the most reliable and trustworthy kind of evidence because a party is bound by the content of a document it prepared or signed.12 Great reliance should therefore be placed on documents. Whatever the arguments in favour of oral testimony in criminal litigation or in tort litigation, they are far less relevant to an efficient system for the settlement of commercial disputes. Like most, if not all, civil law jurisdictions, commercial proceedings in Switzerland are thus distinguished by their reliance on documents. If witnesses are [Page23:] heard, it is only after briefs and documents have first been exchanged between both sides. The witnesses serve only to emphasize and explore the main points in dispute, as previously put into context by the documentary evidence and the written briefs analysing and interpreting that evidence.13
8. Under virtually all cantonal codes of civil procedure, the burden of producing documents lies with the party in whose possession or custody or under whose control they exist. If a party refuses to produce a document or destroys it, such conduct may be taken into account by the court when assessing the evidence, or the alleged content of the document may be deemed proven.14 The parties may be required to produce documents at various stages of the proceedings, depending on the applicable procedural law.
9. Third parties are obliged to furnish documents to a court unless they are entitled to refuse testimony.15
10. A duty to produce documents may also result from substantive federal law relating to particular legal relationships.16 The requirement to provide information or render account generally entails a duty to produce documents for information purposes.17 There may be times when the duty is not explicitly provided for by statute but is ancillary to the legal relationship in question.18
11. A procedural duty to produce documents generally arises only at the evidentiary stage of court proceedings.19 It is the court that determines the relevant factual circumstances for which the parties must furnish proof. A party or third party may be required to produce documents before the commencement of court proceedings only if such duty is based on an obligation under substantive law.20
12. This distinction arises from the different legal purposes of the duty to produce documents under procedural and substantive law: the procedural duty serves the purpose of proving properly detailed allegations of fact,21 whereas the substantive duty serves the purpose of information gathering .22 To enforce the latter duty, the requesting party is required to initiate separate court proceedings.23[Page24:]
13. Under Swiss law, the (constitutional) right to be heard includes the right of a party to effectively present evidence in support of its point of view. A party not only has the right to submit evidence, it also has the right to request the production of relevant evidence and the right to participate in the production of relevant evidence.24
14. As stated above, the duty to produce documents normally arises at the evidentiary stage of proceedings, on exceptional occasions during the pleading phase, and in any event only once the court proceedings are pending.25
15. The party requesting the production of documents must show an interest that deserves legal protection, i.e. it must show that its right to be heard, which includes the right to effectively present evidence in support of its point of view, is at stake. The court must therefore be satisfied (i) that the requesting party has pleaded the factual circumstance in sufficient detail, (ii) that the opposing party has contradicted the factual allegation in sufficient detail, and (iii) that the factual circumstance invoked is material and relevant. Accordingly, no legitimate interest exists if the request for documents serves simply to gather information or to establish a factual basis for the claim.26
16. The requesting party must further show that the document requested is relevant to the factual allegation to be proven. A party seeking documents from its adversary must plausibly explain the relevance of the requested documents to the proceedings and, in particular, to the factual allegation to be proved.27 The court will thus decide whether the document sought by the requesting party is probative of the alleged fact.28 For that purpose, the requesting party will have to provide a detailed description of either the document or a narrow category of documents, for example by identifying the author, nature, subject matter, addressee and approximate date. There is no need, however, to specify the content or exact date of the document.29 The description of the document(s) must in any event be sufficiently detailed to avoid any confusion over the document to be produced.30
17. Finally, the party requesting the production of documents must know, or have reason to know, that the specific documents sought actually exist. It must therefore state that it considers the document to be in the possession or custody of the other party. In some cantons (e.g. Zurich), a statement that the other party has control over the document suffices.31 If, however, the requesting party is able to obtain the document or a copy thereof without the assistance of the court (e.g. where the document has been publicly registered), it cannot argue that the document is in the custody or under the control of the other party.32
18. While it is generally held 'that the requirement of relevance is to be applied strictly, and that it is not the purpose of a production order to provide a party with the necessary documents for founding its claim, even though they may serve to establish the true case',33 the duty to act in good faith may render this requirement less strict in certain circumstances. Most Swiss codes of civil procedure recognize a duty incumbent on parties to act in good faith.34 It is submitted that this duty includes that of disclosing documents in support of the evidence presented by the opposing party.35 In a situation where most or all information is in the hands of the [Page25:] opposing party, where there is no obligation under substantive law to produce documents, and where the counterparty does not substantiate its factual allegations so as to allow the claimant to make properly formulated document requests, it is not possible to use the requesting party's inability to specify or obtain the documents (Beweisnotstand)36 in order to restrict the opposing party's duty to produce the documents.37 If only one party is in a position to provide evidence or even allege certain facts, then it has an obligation to help clarify these facts.38 On the basis of good faith, a party holding relevant documents can thus be required to produce documentary evidence even if the requirements for a proper document request have not been fully met.39
(ii) Limitations
Privacy, secrecy obligations, legal privilege
19. The duty to produce documents may be limited by the opposing or a third party's legitimate interest in their being kept secret. This may be on grounds of privacy, due to a confidentiality agreement, or on account of the internal nature of the document.40 The court has to balance the right of the requesting party to effectively present evidence and the public interest in discovering the truth against the interest of the person to whom the request is directed in keeping the material confidential.41
20. Unless expressly exempted by law, third parties are under the same obligation to produce documents in their possession or custody or under their control as the parties to the proceedings. It is to be noted, however, that legal entities controlled by or part of the same economic unit as a party to the proceedings are frequently not treated as third parties for the purpose of document production.42 The exemptions frequently tie in with the grounds for refusing to give testimony.43 A third party who is a relative of either party to the litigation is often entitled to decline to produce a document regardless of its content.44 Similarly, a third party may decline to produce a document if it would be to its detriment to do so,45 even if the detriment is only of an economic nature, such as exposing itself to a claim for indemnification as a result of such production.46 Finally, third parties bound to professional secrecy by law, such as lawyers, doctors, auditors47 and banks48, may validly refuse to produce documents49 if they concern the core activity of their profession or business.50 Sometimes the same privilege is also extended to other professions reliant on confidentiality, such as psychologists.51
21. A governmental authority which is asked to produce documents and is not a party to the proceedings may rely on its secrecy obligations to contest a request for the production of documents52 or alternatively to seek protective measures or provide only excerpts or copies of the requested documents or a written report on the relevant facts.53[Page26:]
Trade and manufacturing secrets
22. Trade and manufacturing secrets are protected by criminal law in Switzerland.54 Most cantonal codes of civil procedure therefore limit the duty to produce documents if and to the extent that the legitimate secrecy interests of the person required to produce the documents outweighs the right of the requesting party to effectively present evidence and the public interest in determining the truth.55
Lack of probative value
23. Even though a document may be relevant to prove a contested fact, the court is nevertheless not required to order its production if, by its nature, the requested document does not provide the required proof or would in no way alter the assessment of the facts reached by the court on the basis of evidence already received ( antizipierte Beweiswürdigung).56
Measures to protect confidentiality
24. When balancing the right of the requesting party to effectively present evidence and the public interest in a proper fact-finding process against the legitimate secrecy interests or secrecy obligations of the person to whom the request is directed, the court may, if appropriate, make arrangements to allow evidence to be considered subject to appropriate protection of confidential material,57 rather than exclude the evidence altogether.
25. Such arrangements may include redacting parts of a document, not disclosing a document obtained from a third party to either party or limiting its disclosure to one party only or to an expert, or not disclosing a document produced by a party to the opposing party or limiting the disclosure of the document to counsel only. footnote_58> It is generally held that in such situations the court needs to be aware of the content of the document59 and for this reason no use is made in Switzerland of external experts to examine the content of documents independently of the court and decide whether a claim of confidentiality or privilege is justified.
26. Before the court decides on a request for the production of documents, it must give the person to whom the request is directed an opportunity to comment on the request. The court's decision is usually made in the form of a procedural order. Only a few jurisdictions allow for the review of a production order by a higher court, and where they do, the scope of the review is limited, at least where the order is directed at a party to the proceedings.60[Page27:]
27. If the party ordered to produce documents refuses to produce them, the court will take this behavior into account when assessing the evidence. Such behaviour is frequently, but not always, held against the party refusing production.61 Courts tend to proceed similarly if the requested party refuses to provide information as to the whereabouts of the requested document(s) or if it has destroyed the document(s).62 The court's assessment may result in the burden of proof being reversed or in the factual allegation made by the requesting party being deemed to be correct.63 In order to enable a party to present evidence which it otherwise could not obtain without the cooperation of the opposing party (Beweisnot)64, the court may, if necessary, accept a lower standard of proof ( Beweismasssenkung).65
28. In the codes of civil procedure there is usually no provision for penal sanctions or enforcement if a party to the proceedings fails to comply with a court order for the production of documents.66 If, however, a third party refuses to produce documents without justification, the third party will generally have to pay a daily fine for noncompliance and may face criminal sanctions for obstructing a court order.67
29. A party requested to produce a document must produce the entire document if so requested. If it considers parts of the document to be irrelevant, these parts may be redacted only with the approval of the court, which will verify the irrelevance of the parts in question.68
III. Document Production In Arbitral Proceedings
A. Introductory remarks
30. Switzerland's domestic and international arbitration laws provide virtually no guidance on the standards to be applied to document production. The only indication given in the Concordat-subject to the limitations of due process it lists in Article 25-is that it is up to the parties to agree on the procedure and generally up to the arbitral tribunal to take evidence.69 Likewise, under the PILA, party autonomy prevails in international arbitrations provided the parties are given equal treatment and a fair hearing.70 Here, too, the arbitral tribunal normally administers the production of evidence directly.71[Page28:]
B. Standards in domestic arbitration
31. The standards described above72 are generally applied in the same way in domestic arbitration. This is due mainly to the fact that Swiss substantive law will usually apply, that the parties will be represented by Swiss counsel, that all the arbitrators will be Swiss, and that both parties and the arbitral tribunal will thus be familiar and probably also comfortable with the application of Swiss civil procedure. The requirement to plead factual circumstances in detail,73 the requirement to take evidence only after the pleadings have been completed,74 and the rules governing requests for document production75 are all applied quite strictly.
C. Standards in international arbitration
32. It is more difficult to generalize about document production standards applied in international arbitrations seated in Switzerland. The standards may vary substantially depending on the law applicable to the merits, the background and origin of the parties, their counsel and the arbitrators, and the procedural rules agreed on by the parties or determined by the arbitral tribunal.76 It can generally be said that as the number of Swiss ingredients in an international arbitration in Switzerland falls-e.g. non-Swiss arbitrators, a law other than Swiss law applicable to the merits, non-Swiss counsel-the more likely it is that principles of Swiss civil procedure, such as the duty to plead factual circumstances in detail, will not be applied strictly. To the extent possible, the examples given below offer some illustrations of how Swiss arbitrators define standards relating to document production in a predominantly Swiss setting.77
33. There is no question that a party can demand the production of certain documents from another party. This may therefore be regarded as a general procedural rule in international arbitrations in Switzerland deriving from the parties' obligation to cooperate in good faith.78
34. As in proceedings before State courts,79 it is uniformly held that the purpose of producing documents in arbitral proceedings is to prove allegations of fact and not to gather information. Fishing expeditions are therefore unacceptable.
35. While the IBA Rules on the Taking of Evidence in International Commercial Arbitration ('IBA Rules') have gained widespread acceptance in international arbitration in Switzerland,80 their application in relation to document production has not been uniform. When not directly or indirectly applicable, they are frequently used as a source of inspiration, as shown by the following order by a prominent Swiss arbitrator, A:
Pursuant to the [applicable rules], the Sole Arbitrator may at any time during the arbitral proceedings require the parties to produce documents within such a period of time that he determines. This corresponds to a generally acknowledged procedural rule in international arbitration deriving from the obligation of the parties to cooperate in good faith in the proceedings. This provision does not confer upon the Parties a right to document discovery but <page nr="29" /> it is within the Sole Arbitrator's discretion whether to order the production of documents and to what degree. Based on his competence to conduct the arbitration in such manner as he considers appropriate, the Sole Arbitrator also may order the production of documents upon his own initiative and discretion . . . 81
The [applicable rules] do not provide any criteria specifying the requirements for an order for the production of documents, nor have the Parties agreed on any detailed procedural rules. In the absence of such agreement by the parties, it is generally acknowledged and common practice to require that (i) the documents or category of documents can be identified with a reasonable degree of specificity, (ii) the arbitral tribunal is convinced that the party is in possession of the documents, or can easily obtain them, and (iii) the documents relate to facts relevant and material to the outcome of the dispute . . . 82
Further inspiration may be drawn from the more detailed and widely accepted IBA Rules on the Taking of Evidence in International Commercial Arbitration of 1 June 1999 ("IBA Rules"), in particular from the Articles 3 and 9. As the Parties have not expressly agreed upon these rules, they cannot be applied directly, but the Sole Arbitrator may still consider these rules based on his general competence to conduct the arbitration in such manner as he considers appropriate . . .83
36. As regards the application of the specificity criterion, arbitral practice in Switzerland does not seem to differ very much from the requirements set by State courts.84 For instance, arbitrator A continued as follows:
As for the requirement of specification, unspecific and excessive demands are, in general, not accepted. Fishing expeditions or US-style discovery, enabling a party to formulate its allegations and to present its case are thus not permitted. This also is reflected in Article 3(3)(a) IBA Rules, which requires either a description of a requested document sufficient to identify it, or a description in sufficient detail (including subject matter) of a narrow and specific requested category of documents that are reasonably believed to exist. If a category of documents is requested, the requesting party will have to show the presumed author and recipient of the documents as well as the date or the period within which they were created, and their presumed contents. The possibility of requesting production of a category of documents should not amount to a gateway for fishing expeditions.
Interestingly, greater specificity is required here for categories of documents than for individual documents. Requiring the presumed content of the documents to be specified even goes beyond the standards laid down by State courts.85
37. Another leading Swiss arbitrator, B, recently used the following standard, which seems to focus more on enabling the arbitral tribunal to make a ruling and the other party to locate the document(s) than on avoiding information gathering:
The request for production must identify each document or specific category of documents sought with precision. Otherwise, the other party may not be able to trace a document and the Arbitral Tribunal may possibly be unable to rule on its production.[Page30:]
38. While it is accepted that the requesting party must show that the requested documents are reasonably believed to be in the possession or custody or under the control of the other party, the standards applied here are not uniform. Some arbitrators tend to require the requesting party to provide evidence, or at least concrete indications, that the other party is in possession of the requested document(s). This was the position taken by our arbitrator A:
As a further precaution against fishing expeditions, Article 3(3)(c) IBA Rules requires a statement by the requesting party that the documents requested are not in the possession, custody or control of the requesting party and the reasons why that party assumes the documents requested are in the possession, custody or control of the other party. This, again, reflects a generally accepted principle. Should a request for the production of documents not identify the documents sufficiently and therefore not meet the requirements of specification, the Sole Arbitrator may - but is not obliged to -, instead of rejecting the request, specify the documents on his own initiative . . .86
The production of internal documents is not excluded as such. However, their production is ordered with restraint and they do not usually fall under the obligation to produce documents. Special care and scrutiny is required if internal documents are sought which may be protected by confidentiality obligations or contain business secrets. The Party that is ordered to make the production may be allowed to cover the sections that are confidential or that are not relevant to the case. In any event, the decision about whether a Party should be ordered to produce such documents is at the entire discretion of the arbitrator, who only will order their production if he is convinced that they are relevant to the outcome of the proceedings . . .87 The Sole Arbitrator notes at this point that Claimant has provided virtually no evidence that the various internal documents requested exist. . . . There is no concrete indication why Claimant believes that the requested documents exist; Claimant seems to rely on the general presumption that companies do establish and keep internal documents relating to their business dealings. The lack of concrete indications as to the presumed existence of these documents would in the Sole Arbitrator's view suffice to reject the requests for internal documents. The Sole Arbitrator will nevertheless examine the admissibility of Claimant's individual requests. . . .
39. Arbitrator B took the not infrequent approach of deciding to first hear the other party's comments about its alleged possession, custody or control of the requested documents, thus lightening the requesting party's burden of demonstrating the likelihood that the documents were in the possession or custody of the other party or under its control:
The Arbitral Tribunal only will order the production of documents or a category of documents if they exist and are within the possession, power, custody or control of the other party. If contested, the requesting party will have to show this is likely.
40. It is indeed not uncommon for document requests to be granted even when the requesting party has not been specific in its allegations that the documents are in the other party's possession or custody or under its control. In a recent case, another arbitrator, C, granted several document requests in which the requesting [Page31:] respondent had not demonstrated the likelihood of the possession, custody or control of the requested documents by the claimant. What led him to do so was the fact that such possession, custody or control remained unchallenged by the claimant:
With regard to request no. 1, Claimant argues that it filed Respondent's invoices together with its Additional Brief of 6 February 2006 and that any additional correspondence between Claimant and M Ltd. must have been contained in the M Ltd. project folders that were inspected by Respondent in 2004/2005 and in March 2006. Claimant therefore characterises the Respondent's request for a search for such documentation as abusive, stating that it relates to documents on which Respondent itself is better informed than Claimant.
In relation to request no. 2 the Claimant submits that, as in the case of any other correspondence exchanged between Claimant and M Ltd., any instruments purporting to transform the Contract into a turn-key agreement by way of agreement between Claimant and M Ltd. must, if at all existent, have been contained in the project documentation in the possession of M Ltd. that was inspected by Respondent both in 2004/2005 and in March 2006. As a consequence thereof, Claimant requests the Arbitral Tribunal to reject Respondent's request as abusive.
The Arbitral Tribunal notes in relation to requests nos. 1 and 2 that the Claimant neither contests the existence of the requested documents nor denies that it is in possession, custody or control of them. Although the Claimant argues that the documents must have been in folders which the Respondent inspected in 2004/2005 and in March 2006, the Claimant does not make the claim that the Respondent is in possession, custody or control of the requested documents. As the Arbitral Tribunal considers that the requested documents may be of relevance, the Request is to be granted to the extent the requested category of documents is described in sufficient detail.
41. Swiss arbitrators commonly try to avoid making a final decision on the relevance and materiality of documents early in the proceedings. They thus frequently lower the threshold of relevance so as not to prejudice their final findings and to make sure that possibly relevant documentary evidence is available at the hearing. Our arbitrator A, for instance, ruled as follows:
- The requirement of relevance and materiality is met if the Sole Arbitrator is satisfied that the requesting party's statement as to the relevance and materiality of the document appears to be-at the present stage of the proceedings-a reasonable position, i.e. that the requested document may be relevant. Thus, the Sole Arbitrator may order the production of documents, also taking into account the requirement of procedural efficiency in the sense that it may appear advantageous to have certain documents available at the forthcoming witness hearing instead of having them available only at a later stage when the relevance thereof may have been finally determined.
- Accordingly, to the extent the Sole Arbitrator orders or requests the production of a document, such decision is made without prejudice to the Arbitrator's determination that such document is relevant and material to the outcome of the case.[Page32:]
- Conversely, to the extent the Sole Arbitrator does not order the production of a document, such decision is without prejudice to the merits of the issue and provisional in nature: the Sole Arbitrator may revisit his decision at a later stage of the proceedings when new light has been shed on the relevance and materiality of such document. . . .
The requested documents need to be both relevant and material to the outcome of the case. The Sole Arbitrator will therefore not order the production of a document, even though he may deem it relevant, if he is convinced that his decision will not depend upon it, either because the requesting Party can prove its case with other means of evidence or because it has done so already.
42. Arbitrator B used the following standard, which reflects the connection between the relevance requirement and the duty to plead factual circumstances in detail:88
The request for production must establish the relevance of each document or of each specific category of documents sought in such a way that the other party and the Arbitral Tribunal are able to refer to factual allegations in the submissions filed by the parties to date. Obviously, this shall not prevent a party from referring to impending factual allegations (subsequent memorials) provided such factual allegations are made or at least summarized in the request for production of documents. In other words, the requesting party must make it clear, with reasonable particularity, what facts/allegations each document (or category of documents) sought is intended to establish.
D. Limitations
43. When it comes to permissible objections that may be raised against document production requests, our arbitrator A held as follows:
of the opposing party may be based on grounds such as lack of relevance, unreasonable burdensomeness, legal impediment or privilege, technical or commercial confidentiality, protection of sensitive governmental information, loss or destruction of the document, and considerations of fairness or equality of the parties . . .89
44. Arbitrator B chose the following wording:
If necessary, upon proper application, the Arbitral Tribunal also shall balance the request for production against the legitimate interests of the other party, including any applicable privileges, unreasonable burden and the need to safeguard confidentiality, taking into account all the surrounding circumstances.
45. As far as the objections of unreasonable burdensomeness, legal impediment and privilege, and the protection of confidentiality are concerned, Swiss arbitrators tend to follow a somewhat de-nationalized approach, taking into account all relevant circumstances and having regard to the fair and reasonable expectations of the parties and the principle of good faith. It is therefore difficult to make more concrete statements on actual practice.
1 In addition, there is a Federal Code of Civil Procedure, which applies only to cases before the Swiss Federal Supreme Court, and a Federal Code of Judicial Organization. The Federal Constitution was amended in March 2000 to allow for the adoption of federal procedural rules to replace the various cantonal laws. On this basis, draft federal legislation dealing with rules of civil procedure at the level of the cantonal courts is currently being prepared, although it is unlikely to be ready until 2009 or 2010.
2 See supra note 1.
3 Arbitration was long considered a matter of procedural law and thus fell within the regulatory domain of the cantonal parliaments. However, as now all the cantons have acceded to the Concordat, it is possible to speak of a uniform law.
4 The draft federal legislation referred to supra note 1 will replace the Concordat when it comes into force.
5 See e.g. §§ 126-28, Code of Civil Procedure of the Canton of Zurich ('CPC-ZH').
6 e.g. § 121(2) CPC-ZH.
7 According to § 113 CPC-ZH, the parties should include with their briefs the documents on which they wish to rely. However, if a party fails to do so there are no negative consequences (R. Frank, H. Sträuli & G. Messmer, Kommentar zur Zürcherischen Zivilprozessordnung, 3d ed. (Zurich: Schulthess, 1997) and Supplement (Zurich: Schulthess, 2000), § 183 CPC-ZH at para. 7). If deemed appropriate, the court may order the production of documents already at this stage-and impose sanctions for non-compliance-in an effort to expedite the procedure or to secure evidence (§§ 134(1) and 135 CPC-ZH).
8 Unpublished Federal Supreme Court decision of 17 June 1985; Federal Supreme Court, 15 May 1979, DTF 105 II 146.
9 Federal Supreme Court, 7 December 1982, DTF 108 II 339.
10 See e.g. Art. 215, Code of Civil Procedure of the Canton of Berne ('CPC-BE'): 'Evidence and counter-evidence is only to be taken in relation to contested facts. Factual allegations which are not expressly contested are to be deemed correct.' (translation by the author)
11 W.L. Craig, W.W. Park & J. Paulsson, International Chamber of Commerce Arbitration, 3d ed. (Dobbs Ferry, NY: Oceana 2000) at 428ff.
12 A. Bühler, 'Die Beweiswürdigung' in C. Leuenberger, Der Beweis im Zivilprozess (Bern: Stämpfli, 2000) 79.
13 See also W.L. Craig, W.W. Park & J. Paulsson, supra note II at 427 stating that the governing principles of the ICC Rules of Arbitration and the particularities of international disputes favour this (Continental) approach.
14 K. Spühler & D. Vock, 'Urkundenedition nach den Prozessordnungen der Kantone Zürich und Bern' (1999) 95 Schweizerische Juristen-Zeitung (SJZ) 41.
15 See para. 20 below.
16 e.g. the duty of an employer to give an employee entitled to a share in profits the necessary information and access to the company's books to the extent required for verification (Art. 322a, Code of Obligations ('CO')); the duty of managing partners to inspect the partnership books and records (Art. 541 CO); the duty of the board of directors to provide information to shareholders (Art. 697 CO).
17 e.g. the duty of an agent to account to his principal (Art. 400 CO); see Federal Supreme Court decisions of 20 September 1956, DTF 82 II 567; 24 September 1964, DTF 90 II 372; 2 October 1964, DTF 90 II 470.
18 Art. 2 CC; P. Herzog, Die Editionspflicht nach neuer zürcherischer Zivilprozessordnung (thesis: Zürich, 1980) at 102.
19 i.e. after the exchange of briefs. There is an exception to this principle in that most CPCs provide for an 'emergency procedure' for the production of documents (and other evidence) before the claim has become pending if the requesting party makes a plausible case that the presentation of the requested evidence might become more difficult or even impossible. The procedure is thus intended to secure evidence that is at risk (see e.g. § 231 CPC-ZH).
20 See K. Spühler & D. Vock, supra note 14 at 42.
21 Zurich Commercial Court, 12 October 1992, Blätter für Zürcherische Rechtsprechung (ZR) 91/92 (1992/93) No. 65; Zurich Court of Appeal, 24 November 1975, ZR 75 (1976) No. 77; R. Frank, H. Sträuli & G. Messmer, supra note 7, § 183 CPC-ZH at para. 3.
22 K. Spühler & D. Vock, supra note 14 at 42.
23 O. Vogel & K. Spühler, Grundriss des Zivilprozessrechts, 8th ed. (Berne: Stämpfli, 2006) at para. 10.121; K. Spühler & D. Vock, supra note 14 at 42.
24 Art. 29(2), Swiss Federal Constitution; Federal Supreme Court, 31 May 1991, DTF 117 Ia 268.
25 R. Frank, H. Sträuli & G. Messmer, supra note 7, § 183 CPC-ZH at para. 7; K. Spühler & D. Vock, supra note 14 at 42.
26 Zurich Court of Appeal, 22 February 1991, ZR 40 (1951) No. 216; Zurich Court of Appeal, 12 April 1960, ZR 60 (1961) No. 72; Zurich Court of Cassation, ZR 95 (1996) No. 62; G. Ammann, Die Pflicht zur Edition von Urkunden und das Verfahren nach schweizerischem Zivilprozessrecht (thesis: Zurich, 1931) at 24ff.; T. Keller, Die Edition von Urkunden im zürcherischen Zivilprozess (thesis: Zurich, 1963) at 12ff.
27 Zurich Court of Cassation, 6 February 1995, ZR 95 (1996) No. 62.
28 P. Herzog, supra note 18 at 17; T. Keller, supra note 26 at 39; K. Spühler & D. Vock, supra note 14 at 43. See also para. 23 below.
29 Zurich Court of Cassation, 6 February 1995, ZR 95 (1996) No. 62 p. 192; Zurich Court of Appeal, 21 October 1966, Zurich Court of Cassation, 18 April 1967, Federal Supreme Court, 30 May 1967, ZR 67 (1968) No. 56.
30 K. Spühler & D.Vock, supra note 14 at 43.
31 Verfügungsberechtigung; Zurich Court of Appeal, 26 May 1951, ZR 55 (1956) No. 12; P. Herzog, supra note 18 at 19; R. Frank, H. Sträuli & G. Messmer, supra note 7, § 183 CPC-ZH at para. 5.
32 Zurich Court of Appeal, 15 October 1957 and 21 November 1958, ZR 59 No. 130 p. 335; R. Frank, H. Sträuli & G. Messmer, supra note 7, § 183 CPCZH at para. 5.
33 Zurich Court of Cassation, ZR 95 (1996) No. 62 p. 162 (translation by the author).
34 See e.g. § 50 CPC-ZH (see also Art. 2 CC).
35 M. Guldener, 'Treu und Glauben im Zivilprozess' (1942/43) 39 SJZ 405.
36 M. Kummer, Berner Kommentar (Berne: Stämpfli, 1962), Art. 8 CC at para. 8.
37 Zurich Court of Cassation, 6 February 1995, ZR 95 (1996) No. 62.
38 Duty to co-operate (Mitwirkungspflicht); M. Kummer, supra note 36, Art. 8 CC at para. 186.
39 Zurich Court of Appeal, 13 January 2004, ZR 104 (2005) No. 36. For other sanctions, see paras. 27ff. below.
40 Federal Supreme Court, 29 January 1969, DTF 95 I 107; 1 October 1969, DTF 95 I 446; 17 November 1970, DTF 96 I 609; 8 May 1974, DTF 100 Ia 102; K. Spühler & D.Vock, supra note 14 at 43.
41 Federal Supreme Court, 1 October 1969, DTF 95 I 446, 103 Ia 492; Zurich Court of Appeal, 30 November 1957, ZR 60 (1961) No. 75; P. Herzog, supra note 18 at 29.
42 G. Leuch, O. Marbach & F. Kellerhals, Die Zivilprozessordnung für den Kanton Bern, 5th ed. (Berne: Stämpfli, 2000) Art. 236 CPC-BE at para. 1 and Art. 235 CPC-BE at para. 1b.
43 e.g. § 184 CPC-ZH and Art. 238(2) CPC-BE.
44 See e.g. § 158 CPC-ZH and Art. 245 CPC-BE.
45 Art. 247(1) CPC-BE.
46 Zurich Court of Appeal, 20 November 1980 and Zurich Court of Cassation, 23 February 1981, ZR 80 (1981) No. 102; G. Leuch, O. Marbach & F. Kellerhals, supra note 42, Art. 247 CPC-BE at para. 3a; R. Frank, H. Sträuli & G. Messmer, supra note 7, § 159 CPC-ZH at para. 3.
47 Art. 321, Swiss Penal Code.
48 Art. 47, Swiss Federal Banking Act. It is to be noted that Art. 47(4) of the Act reserves cantonal laws concerning the giving of evidence before courts and authorities. If cantonal codes of civil procedure have not made use of this authority, banks cannot invoke Art. 47 of the Act to refuse to produce documents.
49 §§ 159(3) and 160(1) CPC-ZH; Art. 246(1) CPC-BE.
50 Thus, a lawyer cannot refuse to produce a document that relates to the management of his client's funds as opposed to the provision of legal advice (Federal Supreme, Court 29 December 1986, DTF 112 Ib 606ff.; 3 February 1994, DTF 120 Ib 119).
51 See e.g. § 160(1) CPC-ZH; R. Frank, H. Sträuli & G. Messmer, supra note 7, § 160 at paras. 5ff. In recent years many cantons have added journalists to the professions listed in their codes of civil procedure; see e.g. Art. 246a CPC-BE.
52 See e.g. Art. 246(2) CPC-BE.
53 See e.g. § 184(3) in conjunction with §§ 145, 159(2) and 168 CPC-ZH.
54 Art. 162, Swiss Penal Code.
55 See e.g. § 160 CPC-ZH; Federal Supreme Court, 28 January 1987, DTF 113 Ia 4.
56 M. Kummer, supra note 36, Art. 8 CC at paras. 78/79; G. Leuch, O. Marbach & F. Kellerhals, supra note 42, Art. 213 CPC-BE at para. 3a; R. Frank, H. Sträuli & G. Messmer, supra note 7, § 140 CPC-ZH at para. 4.
57 See e.g. § 145 CPC-ZH; Art. 229(3) CPC-BE.
58 R. Frank, H. Sträuli & G. Messmer, supra note 7, § 145 CPC-ZH at para. 3 and introduction to §§ 183ff. CPC-ZH at para. 11a.
59 R. Frank, H. Sträuli & G. Messmer, supra note 7, introduction to §§ 183ff. CPC-ZH at para. 11a.
60 See e.g. §§ 281(1) and 282(1) CPC-ZH, where the party challenging the court's production order must show that both (i) an important procedural principle has been violated and (ii) that there is a risk of irreparable harm or undue cost and expense caused by a complicated procedure (Zurich Court of Appeal, 20 November 1980 and Zurich Court of Cassation, 23 February 1981, ZR 80 (1981) No. 102). If the order is directed at a third party, some cantons allow for an appeal with full review (see e.g. § 273 CPC-ZH; Zurich Court of Appeal, 5 June 1997, ZR 97 (1998) No. 16).
61 Zurich Court of Appeal, 13 January 2004, ZR 104 (2005) No. 36; J. Schmid, Basler Kommentar zum Schweizerischen Privatrecht, 2d ed. (Basel: Helbing & Lichtenhahn, 2002), Art. 8 CC at para. 2. Some cantons take a stricter approach and consider that the factual allegation made by the requesting party should in principle be deemed to be correct, unless the circumstances exceptionally warrant otherwise (see e.g. G. Leuch, O. Marbach & F. Kellerhals, supra note 42, Art. 237 CPC-BE at para. 2).
62 K. Spühler & D. Vock, supra note 14 at 43.
63 M. Guldener, Schweizerisches Zivilprozessrecht, 3d ed. (Zurich: Schulthess, 1979) at 336; R. Frank, H. Sträuli & G. Messmer, supra note 7, § 183 CPC-ZH at para. 7.
64 See para. 18 above.
65 Zurich Court of Appeal, 7 September 2004, ZR 104 (2005) No. 53; J. Schmid, supra note 62, Art. 8 CC at paras. 71 and 72.
66 See e.g. Zurich Court of Appeal, 7 April 1978, ZR 77 (1978) No. 50.
67 Art. 292, Swiss Penal Code (relating to non-compliance with an order issued by a governmental authority).
68 Art. 239 CPC-BE; G. Leuch, O. Marbach & F. Kellerhals, supra note 42, Art. 239 CPC-BE at para. 1; Zurich Court of Cassation, 18 April 1967, ZR 67 (1968) No. 56 p. 200; R. Frank, H. Sträuli & G. Messmer, supra note 7, § 186 CPC-ZH at para. 1. If the party requesting the production of a document wishes to assert privileges or other secrecy concerns, it may not rely on this practice, but ought to request the dismissal of the document production request or protective measures (see paras. 19ff. above).
69 Art. 24(1) provides that the arbitral tribunal will determine the procedure in the absence of an agreement between the parties and Art. 27 that the arbitral tribunal, or one of the parties with the consent of the arbitral tribunal, may seek assistance, if required, from the cantonal court at the seat of the arbitration.
70 Art. 182 PILA.
71 Art. 184 PILA (also providing that the arbitral tribunal, or one of the parties with the consent of the arbitral tribunal, may seek assistance, if required, from the cantonal court at the seat of the arbitration).
72 See paras. 14ff above.
73 See para. 5 above.
74 See para. 6 above.
75 See paras. 15ff above.
76 M.E. Schneider, 'Article 184' in S.V. Berti (ed.), International Arbitration in Switzerland: An Introduction to and a Commentary on Articles 176-194 of the Swiss Private International Law Statute (The Hague: Kluwer Law International, 2000) at paras. 4ff. and 17ff.
77 In the examples, the chairmen or sole arbitrators were Swiss and Swiss law applied to the merits.
78 M.E. Schneider, supra note 76 at para. 18.
79 See para. 12 above.
80 Whether they be adopted (in whole or in part) by the parties and the arbitral tribunal to govern the proceedings or used as guidelines by the parties and the arbitral tribunal in developing their own procedures (see IBA Rules on the Taking of Evidence in International Commercial Arbitration, Preamble, para. 2).
81 Quoting W.L. Craig, W.W. Park & J. Paulsson, supra note 11 at 450; G. Nater-Bass in T. Zuberbühler, M. Müller & P. Habegger (eds.), Swiss Rules of International Arbitration (Zurich/Basel/Geneva: Schulthess, 2005) Art. 24 at para. 11; J.-F. Poudret & S. Besson, Droit comparé de l'arbitrage international (Zurich/Basel/Geneva: Schulthess, 2002) at para. 650; P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit, 2d ed. (Tübingen: Mohr, 1989) at para. 641; M.E. Schneider, supra note 76 at paras. 18, 20.
82 Quoting G. Nater-Bass, supra note 81, Art. 24 at paras. 16 and 18; D.P. Roney & A.K. Müller in G. Kaufmann-Kohler & B. Stucki (eds.), International Arbitration in Switzerland: A Handbook for Practitioners (The Hague: Kluwer Law International, 2004) 49 at 61; M. Blessing, 'Introduction to Arbitration-Swiss and International Perspectives' in S.V. Berti (ed.), International Arbitration in Switzerland: An Introduction to and a Commentary on Articles 176-194 of the Swiss Private International Law Statute (The Hague: Kluwer Law International, 2000) at para. 902; M.E. Schneider, supra note 76 at para. 19.
83 Quoting W.L. Craig, W.W. Park & J. Paulsson, supra note 11 at 455 and S. Jarvin, 'Die Praxis der Beweiserhebung in internationalen Schiedsverfahren' in K.-H. Böckstiegel (ed.), Beweiserhebung in internationalen Schiedsverfahren (Cologne: Carl Heymanns, 2001) 91.
84 See para. 16 above.
85 See para. 16 above.
86 Quoting W.L. Craig, W.W. Park & J. Paulsson, supra note 11 at 455; G. Nater-Bass, supra note 81, Art. 24 at para. 18; J.-F. Poudret & S. Besson, supra note 81 at para. 653; H. Raeschke-Kessler, 'Die IBA-Rules über die Beweisaufnahme in internationalen Schiedsverfahren' in K.H. Böckstiegel (ed.) Beweiserhebung in internationalen Schiedsverfahren, supra note 83 at 48, 51; IBA Working Party, 'Commentary on the new IBA Rules of Evidence' ibid. at 152ff.
87 Quoting J.-F. Poudret & S. Besson, supra note 81 at para. 654; G. Nater-Bass, supra note 81, Art. 24 at para. 18; M.E. Schneider, supra note 76 at para. 19; H. Raeschke-Kessler, supra note 86 at 49; IBA Working Party, supra note 86 at 152.
88 See para. 5 above.
89 Quoting D.P. Roney & A.K. Müller, supra note 82 at 61 and Art. 9(2) IBA Rules.