Switzerland

• Author: Samuel P. Baumgartner
• DOI: 10.1177/0002716208328588
• Published date: 01 March 2009
• Date: 01 March 2009
• Subject Matter: Articles

ANNALS, AAPSS, 622, March 2009 179

Switzerland has the traditional Austro-German repre-

sentative association procedures. Debate on adoption

of other models, given the opportunity of the introduc-

tion of a first federal Code of Civil Procedure, reveals

considerable cautious conservatism toward reform.

Keywords: civil procedure; litigation; class actions;

comparative law

1. Introduction

Switzerland is a parliamentary democracy1

with a federal form of government. Power is

shared by the federal government and the twenty-

six cantons (or states). While private law has been

a matter of federal legislative power since 1898,

civil procedure and the organization of the courts

remained the province of state law.2 Only in 2000,

with the adoption of a new federal constitution

and its immediate amendment, did the federal

government receive the authority to legislate in

the area of civil procedure.3 Since then, the Swiss

government and legislature have been drafting a

new federal code of civil procedure that is

intended to displace the existing cantonal codes,4

with the intention that the new code will be in

force in 2010.5 The drafting of this new federal

code, an enterprise similar in importance to the

promulgation of the Federal Rules of Civil

Procedure in the United States in 1938, presents

an invaluable opportunity to rethink the premises

underlying the cantonal codes and their effective-

ness in practice and to create a modern system for

civil litigation. In the tradition of Swiss consensus

democracy, however (Steiner 1974, 4; Lijphart

Switzerland

By

SAMUEL P. BAUMGARTNER

Samuel P. Baumgartner is an associate professor at the

University of Akron School of Law. He previously taught

at the University of Bern Law School in Switzerland.

From 2001-2004 he was Deputy Head of the Section of

Private International Law at the Swiss Department of

Justice. His scholarship has appeared in four books and in

both U.S. and European journals.

DOI: 10.1177/0002716208328588