U.S. lawyers seeking to depose a witness residing in Switzerland for purposes of litigation in the U.S. often seek advice on how to properly do so as a matter of Swiss law and in accordance with the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Evidence Convention”).

The restriction on the taking of evidence for foreign proceedings on Swiss soil is moderated by the Hague Evidence Convention, which has been ratified by Switzerland. As explained below, the Hague Evidence Convention provides two (2) different options for the deposition of a witness residing in Switzerland. The first option allows for a deposition of the witness in Switzerland by a Swiss judge in a Swiss Court of law (Chapter I), and the second option before a private party – either a diplomatic or consular agent, or a commissioner (Chapter II). A third option, albeit not expressly stated by the Hague Evidence Convention, has the witness deposed abroad.

Given the consequences under Swiss law of failing to follow the Hague Evidence Convention, this article seeks to provide a clear path on compliance with the Hague Evidence Convention.

1. Depositions in Switzerland (two options)

As a matter of Swiss law, “acts falling within the prerogative of the State” – including the gathering of evidence or taking of depositions on Swiss soil in favor of a foreign State or authority, are punishable in accordance with Article 271 of the Swiss Criminal Code if done without prior authorization.

Despite the general prohibition provided in Article 271 of the Swiss Criminal Code, depositions intended for foreign proceedings can be conducted in Switzerland if a prior authorization from the Federal Department of Justice and Police (“FDJP”) has been granted. Pursuant to the Hague Evidence Convention, the FDJP may authorize the parties to obtain evidence either by means of a letter of request as stated in its Chapter I (“Chapter I”) – with a Swiss judge conducting the taking of evidence, or by requesting that the evidence be collected by commissioners, diplomatic or consular officers, as set out in its Chapter II (“Chapter II”).

Chapter I of the Hague Evidence Convention – Letter of request

A deposition pursuant to a letter of request is executed by Swiss judicial authorities, with the full authority of the Swiss Civil Code of Procedure. This option presents the undeniable advantage of coercing a chosen witness to appear and be deposed, which can prove particularly useful when faced with an uncooperative witness.

• Requesting a deposition:

  1. To Whom: A letter of request – including its annexes – must be addressed to the central authority of the canton where evidence will be taken, in the official language of the canton. It is strongly recommended to forward a copy of the request to the Federal Office of Justice (“FOJ”), a subdivision of the FDJP, in addition to the application sent to the central authority of the canton, as the FDJP – boasting shorter processing times – is the authority which ultimately issues the authorization.
  2. By Whom: The request must be submitted by the requesting authority, i.e., by the court having jurisdiction over the proceedings in the U.S.
  3. Content: The request shall identify the witness to be questioned, the parties to the dispute and their addresses, the nature of the proceedings for which evidence is sought, and in particular, specify which evidence should be obtained by the deposition of the concerned witness in Switzerland. When submitting its letter of request, the party seeking the deposition may provide the list of questions to be asked to the witness, along with any specific request with regard to the execution of the taking of evidence, such as whether the deposition ought to be given under oath, or whether any specific procedure such as a cross-examination is requested.

• Conducting the deposition:

  1. The witness must be deposed in the language of the place where the evidence is to be taken (i.e., French, German, or Italian).
  2. The execution of the request is generally carried out in accordance with the laws of the requested authorities, with the Swiss Civil Code of Procedure therefore being applicable. Where the application of the law of the requesting State is requested, the requested authorities will execute the request to the extent that it is not incompatible with mandatory Swiss law provisions, or materially impossible.
  3. Evidence taking in the form of affidavits or cross-examinations, which are foreign to Swiss civil proceedings, may be permitted but will require further consent from the witness and remain under the control of the Swiss judge.
  4. While the executing judge will comply with the additional requests to the extent that they are not in conflict with Swiss law and have been authorized by the FDJP, parties need to keep in mind that the judge will likely not have a comprehensive knowledge of the case and would be unlikely to ask follow-up questions to the ones provided with the letter of request.

The letter of request’s greatest advantage – execution by the Swiss judicial authorities, thereby coercing the witness’s deposition – happens to come with a significant limitation. Indeed, aside from the gaps resulting from the executing judge’s limited knowledge of the case and potential unfamiliarity with common law means of taking of evidence, parties and witnesses alike are subject to the Swiss judicial authorities’ limited availability and significant processing deadlines, as Courts often tend to be severely overloaded.

This first option for depositions of witnesses residing in Switzerland is therefore a suitable fit for – preferably unhurried – parties struggling with obtaining a much-needed witness’s collaboration.

Chapter II of the Hague Evidence Convention – Diplomatic officers, consular agents, and commissioners

In addition to the deposition of witnesses residing in Switzerland by Swiss judicial authorities, the Hague Evidence Convention allows for witnesses to be deposed by diplomatic officers, consular agents, and finally by private persons – usually lawyers – appointed as “commissioners”. As the deposition is not conducted by State courts, the parties are allowed more flexibility with regard to the organizational and logistical aspects of the hearing. Although these acts are performed by extra-judicial agents, it is necessary to obtain the authorization of the FDJP as they remain acts falling within the prerogative of the State. As such, requests under Chapter II still have to be filed to the central authority of the canton of residence of the witness or FOJ, and ultimately be approved by the FDJP.

While all applications under Chapter II are subject to the same general requirements of form and face the same limitations, there are slight differences between depositions to be taken by diplomatic or consular agents and commissioners, both in the content of the requests themselves, and in the preparation of the deposition itself.

Depositions taken by a diplomatic officer or consular agent – Articles 15 and 16 of the Hague Evidence Convention

• Requesting an authorization:

  1. To Whom: Applications – including their annexes – must be addressed to the central authority of the canton where evidence will be taken, in the official language of the canton. As with letters of request, it is strongly recommended to forward a copy of the request to the FOJ in addition to the application sent to the central authority of the canton, insofar as processing times tend to be shorter.
  2. By Whom: As opposed to letters of request which have to be submitted by an authority of the requesting State, the request for a deposition under Chapter II may be submitted by the parties, their attorneys, or a requesting authority.
  3. Content: The request shall, in addition to identifying the witness to be questioned, indicate the parties to the dispute – including their contact details and address, the identity and address of the counsel, the amount in dispute, the nature of the proceedings, and the evidence sought. The request should indicate the embassy or consular agency in which the taking of evidence is requested. Applicants should note that requests pursuant to Articles 15 and 16 of the Hague Evidence Convention grant all diplomatic or consular officials in the relevant embassy or consular agency the authorization to supervise the deposition. Finally, the request should feature a proposed date for the intended taking of evidence, at the earliest two months from the date of the application.
  4. Service: Authorizations granted by the FDJP are served on the applicant. As service to the applicants in the requesting State would have to be made in accordance with the Hague Service Convention, we strongly recommend designating a representative in Switzerland who will accept the service of the authorization to depose from the FDJP in order to avoid any further delays.

• Conducting the deposition:

  1. The deposition must be taken within 6 months of the issuance of the authorization by the FDJP. Once a precise date and place for the hearing has been decided by the parties and the embassy or consular office, the parties must inform by formal letter the local State court which would have been competent, i.e., the court at the place of residence of the witness.
  2. Summons to appear or cooperate in the taking of evidence must be drawn up or translated in the official language of the canton in which the fact-finding procedure will be conducted, unless the witness to be deposed is a national of the requesting State. Furthermore, the summons must specify that the witness may be assisted by counsel, and is not obliged to appear or to cooperate with the taking of evidence.
  3. As opposed to depositions under Chapter I, depositions taken by diplomatic channels shall be conducted in accordance with the law of the requesting State, to the extent it is not incompatible with mandatory Swiss law provisions or materially impossible. This grants the parties a greater scope of control over the hearing logistics and formalities. As such, parties may – with the witness’s consent, lawfully decide to hold the hearing by videoconference, or opt for a more common law type of hearing with the possibility for true to form cross-examination. Directions regularly given to witnesses in Swiss proceedings – such as the prohibition of false testimony or the reasons for refusal to testify, must in any event be read to the witness prior to the hearing.

Depositions taken by a commissioner – Article 17 of the Hague Evidence Convention

• Requesting an authorization:

  1. To Whom: Applications – including their annexes – must be addressed to the central authority of the canton where evidence will be taken, in the official language of the canton. As with letters of request, it is strongly recommended to forward a copy of the request to the FOJ in addition to the application sent to the central authority of the canton, insofar as processing times tend to be shorter.
  2. By Whom: The request may be submitted by the parties, their attorneys, or a requesting authority.
  3. Content: The request shall, in addition to identifying the witness to be questioned, indicate the parties to the dispute – including their contact details and address, the identity and address of the counsel, the amount in dispute, the nature of the proceedings, the evidence sought, and finally indicate the identity of the commissioner with a copy of the U.S. court decision appointing them. If parties wish to appoint several commissioners, an application will have to be filed for each commissioner considered. Finally, the request should feature a proposed date for the intended taking of evidence, at the earliest two months from the date of the application.
  4. Service: Authorizations granted by the FDJP are served on the applicant. As service to the applicants in the requesting State would have to be made in accordance with the Hague Service Convention, we strongly recommend designating a representative in Switzerland who will accept the service of the authorization to depose from the FDJP in order to avoid any further delays.

      

• Conducting the deposition:

  1. The deposition must be taken within 6 months of the issuance of the authorization by the FDJP. Once a precise date and place for the deposition has been decided by the parties, the commissioner and the witness, the parties must inform by formal letter the local State court which would have been competent, i.e., the court at the place of residence of the witness.
  2. Summons to appear or cooperate in the taking of evidence must be drawn up or translated in the official language of the canton in which the fact-finding procedure will be conducted, unless the witness to be deposed is a national of the requesting State. Furthermore, the summons must specify that the witness may be assisted by counsel, and is not obliged to appear or to cooperate with the taking of evidence.
  3. As is the case with depositions supervised by diplomatic or consular officials, depositions taken by commissioners shall be conducted in accordance with the law of the requesting State, to the extent it is not incompatible with mandatory Swiss law or impossible for material reasons. Therefore, parties may, provided the witness has consented to it, hold the deposition by videoconference, or conduct the deposition as is typically done in common-law jurisdictions. Directions regularly given to witnesses in Swiss proceedings – such as the prohibition of false testimony or the reasons for refusal to testify, must in any event be read to the witness prior to the deposition.
  4. Depositions under Chapter II are conducted without judicial supervision, with the commissioners unable to take any coercive measure on the witness, or even apply to a Swiss judge for the taking of any such measure. It is therefore strongly recommended that a written confirmation be obtained from the witness that they are cooperating of their own accord, and are aware that they cannot be forced to participate or to give their deposition.

As all depositions under Chapter II are removed from the direct supervision of State courts, they present an undeniable advantage of being far less time-consuming. Indeed, while requests under Chapter I average a waiting period of 6-12 months from the application of the request to the taking of the deposition, replies to requests under Chapter II are usually received in as short as 2-6 weeks. Furthermore, as the organization and conduct of the deposition is entirely handled by the parties and extra-judicial agents, there is more room to accommodate the participants’ personal or professional constraints.

While the flexibility of depositions under Chapter II is particularly appreciated, it is wholly dependent on the participants – and witness’s cooperation. Should a suddenly uncooperative witness cause a request under Chapter II to fail, the applicant may abandon the procedure without prejudice and begin a request anew, this time under Chapter I to ensure the participation of the witness.

2. Depositions abroad (a third option)

A witness residing in Switzerland wishing to give a deposition for litigation proceedings taking place in the U.S. can circumvent the requirements set out by Switzerland, and the Hague Evidence Convention, by travelling abroad to give his deposition.

Although there are no restrictions prohibiting a witness from voluntarily agreeing to such an approach, care should be given as to the manner in which the witness is invited to give his deposition. Indeed, while a mere invitation to give deposition testimony abroad is not required to follow the procedure for judicial assistance of service, an invitation accompanied by any kind of coercive measure or any indication that the refusal of such invitation would result in a coercive measure – should be made according to the Hague Service Convention.

In Summary: depositions in Switzerland today and tomorrow

Although depositions are a common feature in U.S. litigation, with parties enjoying great flexibility when choosing the place for this part of the pre-trial discovery process, Switzerland has a far more restrictive approach to evidence taking.

In the interest of making depositions of witnesses residing in Switzerland more accessible, the Swiss Federal Council published on 15 March 2024 a proposed amendment to Swiss law, endeavoring to allow future requests under Chapter II to be conducted via teleconference or videoconference without prior authorization of the FDJP. Swiss authorities would still have to be made aware of the details of the teleconference or videoconference, therefore allowing the local court to participate if it wished to do so.

In conclusion, U.S. lawyers seeking to depose a witness residing in Switzerland have a variety of options at their disposal, and the process in Switzerland may be further streamlined in the very near future.