Consulted on the draft revision of the Code of Civil Procedure (CPC), economic circles had rejected the Federal Council’s proposals for the introduction of instruments for the collective exercise of rights and subsequently noted with satisfaction that they had been withdrawn.
“New proposals” on the collective exercise of rights
According to today’s press release, the parliamentary debates on the revision of the CPC revealed that “new proposals on the collective exercise of rights” were clearly expected from the Federal Council. What is incomprehensible, however, is that these are not subject to consultation, but are directly approved before parliament.
In concrete terms, the intention is that the existing collective action for organizations can now also be used for claims for damages, all violations of the law together. Collective mediation – whether or not within a class action procedure – must also become possible. The courts are thus thrown into the hands of the litigation industry as it is sufficient that the complaining organizations exist for at least twelve months when they initiate proceedings. Collective actions will be implemented across sectors and thus be available in all jurisdictions. According to the notice, the condition that only organizations “of national or regional interest” can file complaints in Switzerland will be removed, in violation of current law. This possibility will also be offered to foreign organizations, whereby additional conditions with regard to the authorization or qualification of legitimate associations and organizations will also be waived. With this project, the door is wide open for the international process industry, exactly the trend that the business community has been warning about for a long time. However, no measures appear to be planned to protect us from this.
Unanimous rejection by the economy
As soon as the preliminary draft revision of the Code of Civil Procedure was published, economic circles in our country rejected the idea of introducing collective action instruments into the Swiss legal system (see also the political file economiesuisse: Class actions).
A year ago, economysuisse explained why Swiss companies were against the introduction of such instruments on principle: they strongly encourage abuse, play on the commercialization of Swiss law and only create new problems. Any company in any industry can become a target and face significant liability risks. The ensuing drawbacks, such as a generalized price hike and possible abuse against all Swiss companies, will be significant to our economic system and the model to which Switzerland owes its success. Not to mention that our country will be in the spotlight of a very active process industry that skillfully maneuvers around the world. Ultimately, Swiss consumers will also be the losers.
Facilitating access to justice, a laudable desire
The current draft revision aims to facilitate access to justice, which is supported in Swiss economic circles. These improvements will make it easier to exercise their rights in court (e.g. reduction of the advance of costs for claimants, no transfer of the risks of costs and insolvency to claimants, temporary extension of the mediation procedure, simplification of coordination of proceedings). All these measures – which Parliament is currently considering – use existing and proven means in our legal system. It is therefore appropriate to implement them first to facilitate access to justice and then to wait for the experiments made with the revised Code of Civil Procedure before introducing new procedural instruments prone to abuse.