Newsletter: A Welcome Revision of the Rules on the Taking of Evidence in International Civil Proceedings – Despite New Uncertainties
1. Revision of the Rules on the taking of evidence in international civil proceedings
On 1 January 2026, a revision of Art. 11 and 11a of the Swiss Private International Law Act (PILA) and the Swiss Declaration No. 5 to the Hague of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Evidence Convention) comes into force. It is intended to simplify the taking of evidence in Switzerland for civil proceedings abroad.
Experience shows that there regularly is a need in civil proceedings abroad to obtain evidence located in Switzerland, such as documents or the examination of employees, witnesses or experts. Such evidence must be obtained according to the rules on international legal assistance in civil matters. Otherwise, those involved risk prosecution under Art. 271 of the Swiss Criminal Code (CC), which prohibits carrying out sovereign acts on behalf of a foreign state on Swiss territory.
The revision aims to simplify the examination of and hearing with persons located in Switzerland by means of electronic communication. In addition, the voluntary disclosure of documents located in Switzerland in proceedings abroad will be codified.
In this newsletter, we will outline the main changes brought about by the revision. We will demonstrate how the revision both simplifies the process of gathering evidence in foreign civil proceedings and creates new uncertainties.
2. Simplification of examination and hearings by electronic means in international civil proceedings
What will change?
To date, the examination of a party to foreign civil proceedings or a third party by a commissioner authorized by a foreign authority via telephone or video conference requires prior authorization. From 1 January 2026 on, it will suffice to timely notify the Federal Office of Justice and the competent cantonal central authority (new Swiss Declaration No. 5 on Art. 15, 16 and 17 of the Hague Evidence Convention). The new regulation allows evidence to be collected more flexibly and efficiently in international civil proceedings.
The notification is deemed timely if it is received at least fourteen days prior to the telephone or video conference, whereby notification by email is sufficient. Notification may be made by the foreign court, foreign or domestic legal representatives, the parties or the person concerned.
For the protection of the persons concerned, the new Swiss Declaration No. 5 provides that they may testify in their native language and request that the essential statements of other persons participating in the conference be translated. From a data protection perspective, the technology used must guarantee protection against unauthorized processing of personal data. Furthermore, the evidence taken must be used exclusively for the purposes of the foreign proceedings for which the evidence was taken (i.e., principle of specialty).
Additionally, these rules will also apply with regard to states that are not parties to the Hague Evidence Convention (Art. 11(3) PILA). The revision is therefore also helpful in relation to contracting states that have not adopted Chapter II of the Hague Evidence Convention and are therefore unwilling to appoint a commissioner for examination in Switzerland. From our experience with proceedings in Singapore, we expect that this will facilitate communication with foreign courts.
What remains unchanged?
The content of the notification required by Swiss Declaration No. 5 to the Hague Evidence Convention corresponds to that of the previous application for approval to the cantonal central authority and the Federal Office of Justice. As before, a copy of the foreign court's decision appointing the commissioner must be enclosed.
Furthermore, it remains essential that the person concerned participates in the examination voluntarily and that it is conducted without compulsory legal measures. The notification must be accompanied by a written declaration of consent, which may be revoked at any time.
Otherwise, the provisions of Art. 19-20 of the Hague Evidence Convention apply. In particular, a representative of the cantonal central authority or another authority designated by it may participate in the examination. However, this option is not usually exercised.
Finally, the commissioner remains responsible for ensuring compliance with the provisions of the Hague Evidence Convention and the requirements for an examination without authorization. Similarly, the new Swiss Declaration No. 5 stipulates that Switzerland's criminal law provisions on confidentiality remain reserved.
What rules apply to other means of taking evidence?
For other means of taking evidence, such as an inspection by the commissioner, the rules remain unchanged and prior authorization must be obtained.
How does the revision affect criminal liability under Art. 271 CC?
Criminal liability under Art. 271 CC no longer applies if the notification meets the requirements of the Swiss Declaration No. 5 of the Hague Evidence Convention and the specified requirements for examination are met (e.g., data security and the principle of specialty).
If the Federal Office of Justice or the cantonal central authority considers that the notification does not meet the conditions, it cannot prohibit the taking of evidence. However, it can file a criminal complaint. To reduce this risk, it may be advisable to request an informal assessment from the Federal Office of Justice or the cantonal central authority in advance. This, in turn, eliminates the increase in efficiency and time savings intended by the revision.
3. Voluntary disclosure of evidence and submissions in proceedings abroad
When is voluntary disclosure permissible?
From 1 January 2026 on, Art. 11(2) PILA stipulates that a party to proceedings residing in Switzerland may be directly requested to submit documents or evidence.
With this revision, existing law and practice is codified. Accordingly, the foreign authority conducting the proceedings, a person appointed by it or the party representative in US pre-trial discovery proceedings may contact a party residing in Switzerland directly and request them to submit a submission or evidence. The prerequisite is that the refusal to cooperate does not result in any sanction for the party and that the request is served by means of international legal assistance in civil matters.
However, the rules on international legal assistance in civil matters do not apply if the party concerned has a domicile for service abroad (e.g., a legal representative in the country where the foreign proceedings are taking place). In such a case, there is no sovereign act in Switzerland within the meaning of Art. 11(1) PILA.
If the requirements of Art. 11(2) PILA are met and a party complies with the request of the foreign authority, it is not liable to prosecution under Art. 271 CC. However, it must comply with the statutory confidentiality obligations, such as banking or manufacturing and trade secrecy.
When is international legal assistance still required?
Art. 11(2) PILA does not apply in the following cases:
The person subject to the request is not a party to the proceedings, but a third party such as a witness or expert.
Refusal to cooperate has more than just civil procedural consequences, in particular if a sanction is threatened (e.g., contempt of court).
A representative of the foreign authority enters Swiss territory to obtain a submission or evidence.
What rules apply if the Swiss party cannot "freely dispose" of the evidence in question?
It is unclear how the newly adopted Art. 11(2) PILA relates to a criticized ruling of the Swiss Federal Supreme Court from the year 2021 (FSC 148 IV 66). In its ruling relating to the production of evidence for US criminal proceedings, the Federal Supreme Court allowed the voluntary disclosure of documents in proceedings abroad only if the Swiss party has "free disposal" over them, i.e. if no confidential information about third parties (e.g. customers or employees) is involved. Otherwise, according to the Federal Supreme Court, there is a risk of criminal liability under Art. 271 CC – even in case of voluntary disclosure. There are convincing grounds suggesting that under the newly adopted Art. 11(2) PILA, a Swiss party may voluntarily disclose documents and other evidence in foreign proceedings even if they are not "freely disposable". However, until the matter has been clarified by the Federal Supreme Court, due to the threat of criminal liability, caution is advised when disclosing such documents in proceedings abroad.