Taking of evidence in aid of cross-border civil proceedings – it’s getting (somewhat) easier in Switzerland

Background: Restrictions posed by the Swiss blocking statute

Under Swiss law, the examination or hearing of a person in Switzerland in aid of foreign civil proceedings is considered an official act performed on behalf of the foreign state. This applies also in case such hearing or examination is being conducted through electronic means, i.e. by telephone or video conference. [1] Therefore, such examination or hearing requires prior authorisation from the Swiss authorities. Absent such authorisation, the taking of evidence by electronic means runs afoul the Swiss blocking statute (article 271 of the Swiss Criminal Code [SCC]), which makes it a criminal offence to take acts on behalf of a foreign State on Swiss soil.

Both the Covid-19 pandemic and the fight against climate change necessitated a review of the restrictions for Swiss-domiciled persons to voluntarily participate in foreign court hearings. Accordingly, in 2021, the Swiss Council of States (Legislative Branch) requested the Federal Council (Executive Branch) to simplify the rules governing the use of electronic communication tools in cross-border civil proceedings. The Federal Council subsequently presented a draft for public consultation in 2022, which proposed replacing the authorisation requirement by a notification obligation, provided certain conditions are met to safeguard Swiss sovereignty and protect the rights of the Swiss-based persons attending a foreign court hearing (in particular, confirmation of voluntary participation).[2] As Lenz & Staehelin is often representing parties in cross-border civil proceedings, we submitted comments during the consultation process, expressing our support for the proposal and helping to shape the new rules from a practitioners' perspective.[3] 

In 2024, the Swiss parliament adopted the respective amendments to the Swiss Private International Law Act (PILA) and authorised the Federal Council to amend the Swiss Declaration No. 5 on Articles 15–17 of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”).[4] As confirmed by the Federal Council on 5 November 2025, these provisions will enter into force on 1 January 2026.[5]

Legal framework governing the voluntary participation in foreign court hearings by electronic means as from 1 January 2026

As from 1 January 2026, persons located in Switzerland may be examined or heard in foreign civil proceedings by telephone, videoconference or any other electronic means of audio or visual transmission without prior authorisation by the Swiss authorities, subject to following requirements which aim at protecting Swiss sovereignty and the rights of the individual taking part in such hearing:

• Participation in an examination or hearing through electronic means must be entirely voluntary; in case a person located in Switzerland shall be interrogated against his/her will, also going forward this will only be permissible through the means of international mutual legal assistance.
• The individuals subject to such examination have the right to testify or respond in their native language. Upon request, essential statements made by others during the hearing must be translated.
• If the purpose of a hearing is the taking of evidence, the individual has the right to be accompanied by his or her own counsel.
• The date of the examination or hearing must be notified to the Swiss federal authorities and the competent cantonal authority in advance. If such notification is made at least 14 days prior to the hearing or examination, it is in any event considered timely. Lenz & Staehelin had suggested such “safe harbour” rule as part of the comments in the consultation process since from a practitioners’ perspective it is essential for clients to have certainty as to when this requirement has been fully complied with. This does not exclude, however, that in urgent case, the authorities may accept even later notifications. The new rules further provide that notification by e-mail is sufficient. 
• Notification may be made by the foreign court, by one of the parties, their domestic or foreign counsel, or by the Swiss-domiciled individuals who participate in the examination or hearing (or their counsel).
• The competent cantonal authority must be afforded an opportunity to attend the examination or hearing. We expect that, as in the past, cantonal authorities will not make use of this right (which is why during consultation we had suggested abolishing this requirement altogether).
• The technology used for the hearing or examination by electronic means must ensure data security and protect against unauthorised access or manipulation.
• The results of the hearing or examination must be used exclusively for the proceedings in which the evidence was taken.
• Statutory confidentiality obligations remain expressly reserved, i.e. the individual participating in a hearing or examination by electronic means must keep confidential in particular manufacturing and trade secrets (within the meaning of article 273 SCC) and information that is subject to banking secrecy (article 47 of the Bank Act).

This new framework is much more flexible as well as considerably less burdensome and costly than the current rules, which require not only a prior notification to, but also an express authorisation from, the Swiss authorities. Nevertheless, it remains indispensable that the participation of an individual present in Switzerland at the time of participation in a foreign hearing or examination is voluntary. Moreover, failure to abide by the aforementioned requirements will result in such foreign hearing or taking of evidence being considered a violation of Swiss sovereignty and the Swiss blocking statute (article 271 SCC).

While technically the less restrictive new framework only applies in case of foreign court proceedings in another member State of the Hague Evidence Convention, Swiss parliament at the same time adopted a new provision in the PILA, pursuant to which these rules shall be applied also vis-à-vis States which are not signatories of the Hague Evidence Convention. Therefore, these rules in principle apply in case of voluntary participation in any hearing or examination by foreign courts in civil proceedings.
 

Further clarification on the production of documents/data in foreign proceedings

Another thorny issue in cross-border civil proceedings are the restrictions imposed by the Swiss blocking statute on the production of documents/data by Swiss-domiciled parties to such foreign proceedings. While traditionally, the production of documents/data by a Swiss party to foreign civil proceedings was considered permissible as long as such production was voluntary or at least not subject to criminal sanctions (criminal contempt) by the foreign court in case of non-compliance, a 2021 Swiss Supreme Court decision – which concerned US criminal proceedings in the context of the tax dispute between the United States and Switzerland – cast significant doubts on the continued legality of this approach. In particular, the Federal Supreme Court decision seemed to permit only the production of documents/data in foreign proceedings if the Swiss party could “freely dispose” of such documents/data, i.e. if such documents/data did not contain confidential information regarding third parties (such as, e.g., clients or employees). A strict reading of this decision suggested that the disclosure of other documents/data by a Swiss party to the foreign proceedings, even on an entirely voluntary basis, could result in criminal prosecution for violation of the Swiss blocking statute.[6] This made it significantly more burdensome and risky for Swiss parties to defend their interests in foreign civil proceedings. 

The newly adopted rules, specifically article 11 para. 2 PILA, intend to clarify that in case of foreign civil proceedings, a Swiss-domiciled party to such proceedings may voluntarily disclose documents/data in such proceedings, provided a respective production request by a foreign court (or opposing counsel in US discovery proceedings) is not subject to criminal sanctions in case of non-compliance. It is further required that such production request is properly served upon the Swiss-domiciled party through the appropriate channels of mutual legal assistance (namely the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters) or to foreign counsel designated as service agent by such Swiss-domiciled party. In our view, this allows Swiss-domiciled parties to foreign civil proceedings to disclose documents/data on a voluntary basis even if such parties may not “freely dispose” of such documents/data. That said, the Swiss-domiciled party must of course still respect statutory confidentiality obligations, such as, banking secrecy (article 47 of the Bank Act) and manufacturing or trade secrets (within the meaning of article 273 SCC).[7] Moreover, the aforementioned principles only apply to Swiss-domiciled persons, who are parties to foreign civil proceedings. Persons domiciled in Switzerland, who are asked to produce documents/data in aid of foreign proceedings between other parties, are subject to stricter requirements, i.e. may produce documents/data only through the channels of mutual legal assistance in civil matters.

As of 1 January 2026, the taking of evidence in Switzerland in aid of foreign or cross-border civil proceedings will thus become somewhat easier and less of an administrative burden to Swiss-domiciled parties, provided they participate on a voluntary basis. Nonetheless, the Swiss blocking statute remains an obstacle – and sometimes a legal defense – in the context of foreign proceedings. This applies in particular in case of criminal, regulatory or administrative foreign proceedings, to which the newly adopted rules do not apply.
 

[1] See Guidelines in International Judicial Assistance in Civil Matters (last updated 1 July 2024), English version available at https://www.rhf.admin.ch/dam/rhf/en/data/zivilrecht/wegleitungen/wegleitung-zivilsachen-e.pdf.

[2] Explanatory Report, Initial Draft, and other documents of the consultation process available in German, French, and Italian at https://www.bj.admin.ch/bj/de/home/wirtschaft/gesetzgebung/grenzueberschreitende-zivilprozesse.html. 

[3] See the comments to the consultation process, available at https://www.fedlex.admin.ch/filestore/fedlex.data.admin.ch/eli/dl/proj/2022/18/cons_1/doc_6/de/pdf-a/fedlex-data-admin-ch-eli-dl-proj-2022-18-cons_1-doc_6-de-pdf-a.pdf, pages 81-84.

[4] See the Federal Council’s Message concerning the Federal Decree on the Use of Electronic Means of Communication in Cross-Border Civil Proceedings dated 15 March 2024, BBl 2024 792, available in German, French, and Italian at https://www.fedlex.admin.ch/eli/fga/2024/792/de.

[5] Press release of 5 November 2025, available in German, French, and Italian at https://www.news.admin.ch/de/newnsb/xAQeT4Brhbes. 

[6] See our comments on the Supreme Court’s decision 6B_216/2020 of 1 November 2021, published in BGE 148 IV 66, in: MÜLLER / DELLI COLLI / BRÜTSCH, Klarere Konturen für Art. 271 Ziff. 1 StGB?, GesKR 1/2022, p. 115 et seq.).

[7] See the Federal Council’s Message concerning the Federal Decree on the Use of Electronic Means of Communication in Cross-Border Civil Proceedings dated 15 March 2024, BBl 2024 792, Section 5.2, available at https://www.fedlex.admin.ch/eli/fga/2024/792/de.

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Legal Note: The information contained in this Smart Insight newsletter is of general nature and does not constitute legal advice.