The Swiss Confederation became signatory to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, also called the Hague Service Convention, on May 21, 1985, and its provisions entered into force on January 1, 1995.
US attorneys seeking service in Switzerland would be wise to familiarize themselves with the mandatory character of the Hague Service Convention as set forth in the US Supreme Court case Volkswagenwerk A.G. v. Schlunk (486 U.S. 694 (1988)).
The Hague Service Convention offers plaintiffs a number of channels by which service may be accomplished in the foreign country. All of these channels constitute proper “Hague Service” under US law, although there are advantages and disadvantages to each in terms of cost, speed and enforceability.
The most commonly used channels for service under the Hague Service Convention are:
For further information about all of the Hague channels of transmission provided by the Service Convention see below.
The Hague Service Convention provides that service may always be effected through the judicial system of the destination country. This is accomplished by filing a request with the Central Authority designated by that country (as described in Article 5 of the Convention), and requesting either formal also called compulsory service or informal also called voluntary service.
Hague Forms. The Hague Service Convention provides that a set of three model forms (“Request,” “Certificate,” “Summary of the Document to be Served,”) and and one recommended form (“Notice”) must accompany the documents to be served. These forms are designed to summarize the key contents of the court documents and guide the defendant to the appropriate action.
Central Authority. Switzerland has one Federal Central Authority and twenty-six regional Authorities, one for each of its provinces (“cantons”):
The Swiss Federal Central Authority:
Federal Justice and Police Department
Office fédéral de la justice
Domaine de direction
Entraide judiciaire internationale
The Cantonal Central Authorities:
Obergericht des Kantons Aargau
Obere Vorstadt 40
Kantonsgericht Appenzell A.RH.
Kantonsgericht Appenzell I.RH.
Unteres Ziel 20
Obergericht des Kantons Bern
Place de l’Hôtel de Ville 2a
Case postale 56
Parquet du Procureur général
Place du Bourg-de-Four 1
Case postale 3565
1211 Genève 3
Obergericht des Kantons Glarus
Département des Finances, de la Justice et de la Police
2, rue du 24-Septembre
Obergericht des Kantons Luzern
Département de la justice, de la santé et de la sécurité
Service de la justice
Obergericht des Kantons Schaffhausen
Obergericht des Kantons Solothurn
Kantonsgericht St. Gallen
9001 St. Gallen
Obergericht des Kantons Thurgau
Tribunale di appello
via Pretorio 16
Obergericht des Kantons Uri
6460 Altdorf UR 1
Palais de Justice
1950 Sion 2
Palais de justice de l’Hermitage
Route du Signal 8
1014 Lausanne ADM cant VD
Obergericht des Kantons Zug
Obergericht des Kantons Zürich
Note: There is no advantage to filing a Hague Service Request with the Federal authority in lieu of the cantonal authorities. In fact, direct service through a cantonal authority is likely to be accomplished more quickly.
Legal Authority for Service. International judicial assistance in civil matters is provided by Articles 54, 56, 172 and 184 of the Swiss Constitution of 18 April 1999 (SR 101). However, service of process itself is generally effected through a cantonal Central Authority and pursuant to cantonal law.
Methods of Service. Civil procedure rules vary from canton to canton, and generally provide for several types of service:
At present, service of foreign pleadings by fax or e-mail is not valid in Switzerland.
Caveat: Certain types of substituted service and mailbox service which are routinely effected under Swiss law may be deemed insufficient under US law.
Who effects service: a court bailiff, a policeman or a postman (depending upon the method of service employed).
The Swiss judicial authorities regularly give notice that errors in the service of documents can result in the non-execution of foreign civil judgments in Switzerland.
Switzerland has filed the following declarations with respect to the alternative channels of Hague service:
With regard to direct service upon nationals of the requesting state or direct service (without compulsion) upon nationals of the destination state via diplomatic or consular agent:
Switzerland objects to service in its territory by foreign diplomats upon Swiss nationals. (Pursuant to the Convention, Switzerland cannot object to service by foreign diplomats upon nationals of the diplomat’s own state.)
Caveat: US litigants should be aware that US diplomats will generally not serve process abroad and this channel is rarely employed in US civil actions (For further information, see US Consular Regulations).
With regard to direct service by postal channel:
Switzerland objects to service by postal channel.
The Swiss government encourages defendants who have been deliberately served with documents by mail (which is a violation of Article 271 of the Swiss Penal Code) to report this infraction to the Office of the Attorney General of Switzerland.
Caveat: US plaintiffs may not have recourse to direct mail service upon defendants in Switzerland. Moreover, even where permitted, mail service pursuant to the Hague Service Convention is fraught with problems, including potential problems with later enforcement of US judgments in the destination state—even when the destination state has not objected to such service. US courts are also split regarding propriety of mail service under the Convention. US plaintiffs are advised to proceed with caution when employing this channel. (For further information, see Service by Mail.)
With regard to direct service by a judicial officer, official or other competent person of the destination state:
Switzerland objects to service by judicial officer.
Caveat: US plaintiffs may not have recourse to direct service by judicial officer upon defendants in Switzerland.
Furthermore, note that “judicial officer,” “official” or “competent person” are terms defined under the laws of the destination state, not under the laws of the requesting state. Swiss attorneys, detectives or private persons are not judicial officers and are not empowered to serve process. Private process service is unknown. (For further information, see Service by Judicial Officers.)
Switzerland requires an official translation into French, German or Italian of all documents to be formally served (that is, served using compulsion) pursuant to Article 5, subparagraph 1 or Article 10(b) and (c).
The exact language to be used for translation is dependent upon the canton in which the defendant is located:
Appenzell Ausserrhoden: German
Appenzell Innerrhoden: German
Bern: German or French
Fribourg: German or French
St. Gallen: German
Valais: French or German
Article 7 of the Hague Service Convention provides that the Hague model forms should be completed in English or in French or may be completed in the language of the destination country.
Switzerland does not require translation into oen of the Swiss national languages for service effected pursuant to Article 5, subparagraph 2 (voluntary service) or Article 10(a) (mail service); however, note that US notions of due process will always require that the defendant understand the documents with which he or she is being served. US due process is a constitutional right under US law and as such, trumps the requirements of the Convention and foreign law.
For further information on translation requirements under the Hague Service Convention, contact us by phone at 1-800-755-5775 or by email at the International Litigation Support Department of Legal Language Services for a FREE consultation.
US subpoenas are not routinely served upon foreign witnesses pursuant to the Hague Service Convention.
Residents or citizens of the United States located abroad, however, must be responsive to US subpoenas served upon them. For further information on the issues involved, contact us by phone at 1-800-755-5775 or by email at the International Litigation Support Department of Legal Language Services for a FREE consultation.
On the other hand, any national who is not a resident or citizen of the United States is not required to respond to a US subpoena delivered to him or her in Switzerland. In essence, such a subpoena loses its coercive effect once it leaves US borders. Because it is no longer a coercive instrument, and because the witness is not subject to the jurisdiction of the issuing court, the question of “how to properly serve” a subpoena is irrelevant.
However, testimony and documents can be compelled from a non-party witness located in Switzerland. LLS can offer you extensive advice on various approaches to securing such evidence pursuant to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, also called the Hague Evidence Convention, and foreign law.
LLS can also assist you in arranging voluntary depositions of willing witnesses on foreign soil. In Switzerland, for example, LLS can arrange for depositions to be taken before a commissioner or a consular officer and can secure the required prior permission of the Swiss judicial authorities. LLS can also provide court reporters, videographers, interpreters and videoconferencing for private depositions and formal hearings.
For further information, contact us by phone at 1-800-755-5775 (outside the US and Canada: +1.913.341.3167) or by email at the International Litigation Support Department of Legal Language Services for a FREE consultation and ask to speak to a specialist in foreign evidence-taking.
The information provided on this site is for informational purposes only and should not be construed as legal advice. The information is believed to be accurate at the time of posting; however, LLS is not responsible for any information which may have become outdated or inaccurate.
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