Today, prior authorization is required from the Federal Office of Justice (FOJ) if a person is to be questioned or heard in Switzerland in the context of foreign civil proceedings by telephone or video conference. The questioning of a person in the context of civil proceedings generally constitutes a measure for the taking of evidence. Such measures are of a sovereign nature and, according to Swiss law, may not be performed directly by foreign court in Switzerland. Rather, the legal assistance route must be taken (predominantly governed by the 1970 Hague Evidence Convention).
In view of advancing digitalization, this regulation with individual case approval is increasingly judged to be cumbersome. In recent years, the questioning of parties, witnesses or experts using electronic means of communication has become increasingly popular in cross-border civil proceedings. Therefore, the law shall be changed.
The Federal Council's draft bill (LINK) provides that the questioning or hearing of a person residing in Switzerland in the context of foreign civil proceedings by means of telephone or video conference is permissible without prior official authorization, provided that certain conditions are met to safeguard Swiss sovereignty and to protect the person concerned (see Explanatory Report on draft bill, LINK).
The current requirement of a request to the FOJ via the cantonal legal assistance authority is to be replaced by an obligation to notify these two authorities. This notification should essentially contain the same information about the planned telephone or video conference as is currently required for applications for approval. The conditions attached to the currently issued authorizations of the FOJ are to be retained in an adapted form. For example, the competent cantonal legal assistance authority must be allowed to participate in the conference if it so wishes.
In contrast to today’s legal situation, such questioning or hearings should also be possible in civil proceedings of states that are not party to the 1970 Hague Evidence Convention. Currently, this is only possible in exceptional cases. As was already the case under the current law, it is always assumed that participation in the questioning or hearing is voluntary.
Technically, this change is implemented by waiving the requirement for permission to take evidence in Switzerland, as provided for in Article 17(2) of the 1970 Hague Evidence Convention, and limit such waiver to interviews by means of electronic communication. In order to implement the changes, Switzerland's Declaration No. 5 to the 1970 Hague Evidence Convention and Articles 11 and 11a of the Federal Act on Private International Law must be amended.
The consultation period for the draft bill will last until 9 March 2023. The amendments are unlikely to enter into force before the beginning of 2024.