Class Actions and Group Litigation in Switzerland

Baumgartner, Samuel P. | January 1, 2007

In what follows, I hope to contribute to that information with a look at group litigation devices in Switzerland. To begin with, Switzerland is one of the many countries that do not currently have an American-style class action. Suggestions to examine the possibility of introducing such a procedural vehicle have met with considerable opposition. Some of the reasons for that opposition are grounded in reactions to litigation in the United States. More broadly, however, there seems to be a general unease with civil litigation involving more than the traditional plaintiff and defendant and an occasional individual joined out of an urgent need, such as to extend res judicata effect to a co-heir or business partner. Below, I intend to explore the most important reasons for that reluctance. I will do so first by analyzing the proposals to introduce an American-style class action and their rejection. I will then take a closer look at the group litigation devices that already exist in Swiss procedure. They include devices to let similarly situated individuals sue together (joinder of parties), to have an organization sue for its members with similar rights (Verbandsklage and Verbandsbeschwerde), and to allow a court to consolidate claims arising out of the same controversy. Moreover, certain shareholder litigation results in judgments that are binding on all or an extended group of shareholders. As my analysis below demonstrates, however, even these devices have been interpreted narrowly by the courts and used with little aggressiveness by litigants.