Civil Procedure Reform in Switzerland and the Role of Legal Transplants

On January 1, 2011, Swiss courts will begin operating under a unified federal code of civil procedure for the first time in the country’s history. This code has been exceedingly long in the making. In this chapter, I use the new code and its history to engage the editors’ claim that the old categories of common law and civil law procedure are crumbling, thus making differences among countries within the common law or civil law world more important than differences across the divide. First, the new Swiss code of civil procedure includes a number of features that may look like they were borrowed from the common law world or, more succinctly, from the United States. Yet, they have long been features of the codes of some Swiss cantons, partly originating in Switzerland itself, partly borrowed centuries ago from neighboring countries. Perhaps then, the distinction between common law and civil law procedure has never been as clear-cut as some accounts would have it. Second, the new Swiss Code almost entirely eschews borrowing from foreign legal systems, common law or civil law. In examining the reasons for this lack of borrowing, I attempt to identify possible circumstances under which borrowing is likely to occur and when it is not. I conclude that the operating assumption of any project of procedural reform is going to be to refrain from borrowing unless particular countervailing forces prevail. Thus, I do not think that the distinction between common law and civil law is likely to disappear soon. Neither, however, do I think the distinction has ever been as pronounced as is often assumed