LEGAL LANGUAGE SERVICES

Service of Process in Switzerland

International Service of Process in Switzerland under the Hague Service Convention

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 channels for Service

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:

• service through a Central Authority in the foreign country (Article 5)
• service through an alternative channel (diplomat, mail, judicial officer) in the foreign country, provided that the  country does not formally object (Articles 8, 9 and 10).

For further information about all of the Hague channels of transmission provided by the Service Convention see below.

Service through the Central Authority

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
Bundesrain 20
3003 Berne

The Cantonal Central Authorities:

Aargau:
Obergericht des Kantons Aargau
Obere Vorstadt 40
5000 Aargau

Appenzell Ausserrhoden:
Kantonsgericht Appenzell A.RH.
Postfach 162
9043 Trogen

Appenzell Innerrhoden:
Kantonsgericht Appenzell I.RH.
Unteres Ziel 20
9050 Appenzell

Basel-Landschaft:
Kantonsgericht Basel-Landschaft
Justizverwaltung
Postfach 635
4410 Liestal

Basel-Stadt:
Appellationsgericht Basel-Stadt
Bäumleingasse 1
4051 Basel

Bern:
Obergericht des Kantons Bern
Rechtshilfe
Hochschulstrasse 17
Postfach 7475
3001 Bern

Fribourg:
Tribunal cantonal
Place de l’Hôtel de Ville 2a
Case postale 56
1702 Fribourg

Genève:
Parquet du Procureur général
Place du Bourg-de-Four 1
Case postale 3565
1211 Genève 3

Glarus:
Obergericht des Kantons Glarus
Gerichtshaus
Postfach
8750 Glarus

Graubünden:
Kantonsgericht Graubünden
Poststrasse 14
Postfach
7002 Chur

Jura:
Département des Finances, de la Justice et de la Police
Service juridique
2, rue du 24-Septembre
2800 Delémont

Luzern:
Obergericht des Kantons Luzern
Hirschengraben 16
6003 Luzern

Neuchâtel:
Département de la justice, de la santé et de la sécurité
Service de la justice
Château
2001 Neuchâtel

Nidwalden:
Kantonsgericht Nidwalden
Rathausplatz 1
6371 Stans

Obwalden:
Kantonsgericht Obwalden
Postfach 1260
6061 Sarnen

Schaffhausen:
Obergericht des Kantons Schaffhausen
Postfach 568
8201 Schaffhausen

Schwyz:
Kantonsgericht Schwyz
Kollegiumstrasse 28
Postfach 2265
6431 Schwyz

Solothurn:
Obergericht des Kantons Solothurn
Zivilkammer
Amtshaus 1
4502 Solothurn

St. Gallen:
Kantonsgericht St. Gallen
Klosterhof 1
9001 St. Gallen

Thurgau:
Obergericht des Kantons Thurgau
Promenadenstrasse 12
8500 Frauenfeld

Ticino:
Tribunale di appello
via Pretorio 16
6901 Lugano

Uri:
Obergericht des Kantons Uri
Rathausplatz 2
Postfach
6460 Altdorf UR 1

Valais:
Tribunal cantonal
Palais de Justice
1950 Sion 2

Vaud:
Tribunal cantonal
Palais de justice de l’Hermitage
Route du Signal 8
1014 Lausanne ADM cant VD

Zug:
Obergericht des Kantons Zug
Rechtshilfe
6300 Zug

Zürich:
Obergericht des Kantons Zürich
Rechtshilfe
Postfach
Hirschengraben 15
8021 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:

• Service by registered mail, return receipt requested, issued by a the court clerk/registrar of the local cantonal court (commonly employed by the Central Authorities)
• Simple or informal notice  (“notification” or voluntary acceptance of service)
• Personal service by a court bailiff  or a policeman (“signification”)
• Service by insertion into a mailbox
• Service by leaving a summons on defendant’s door or in his mailbox containing a warning that documents must be retrieved from post office or court office
• Service by mailing a summons to the defendant requiring him to appear before a judicial officer and be served with process
• Various forms of substituted service
• Service by publication

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).

Service through the alternative channels

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:

Articles 8 and 9:

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).

Article 10(a):

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.)

Articles 10(b) and (c):

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.)

Translation Requirements under Swiss law:

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:

Aargau: German
Appenzell Ausserrhoden: German
Appenzell Innerrhoden: German
Basel-Landschaft: German
Basel-Stadt: German
Bern: German or French
Fribourg: German or French
Genève: French
Glarus: German
Graubünden: German
Jura: French
Luzern: German
Neuchâtel: French
Nidwalden: German
Obwalden: German
Schaffhausen: German
Schwyz: German
Solothurn: German
St. Gallen: German
Thurgau: German
Ticino: Italian
Uri: German
Valais: French or German
Vaud: French
Zug: German
Zürich: 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.

Service of US Subpoenas in Switzerland

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.

Note:

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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