Class Actions and Group Litigation in Switzerland

Class actions have gone global. Foreign parties are no longer a rarity in U.S. class litigation, among other developments. In addition to being named as defendants, foreigners increasingly form a significant part of the group of absent class members. U.S. courts have thus begun to consider some novel issues, including whether due process requires foreigners to be treated as an opt-in rather than an opt-out class; whether a judgment or settlement in the suit is capable of being enforced or recognized as res judicata abroad and thus whether class certification is justified in the first place; and whether a foreign forum grants comparable access to justice in the form of group litigation and thus represents an adequate alternative forum for purposes of a forum non conveniens defense. Knowledge about the relevant foreign procedure, institutions, and jurisprudential values thus becomes crucial for decision-making in this area. In this Article, I attempt to contribute to that information with a look at group litigation devices in Switzerland. In discussing both proposals to introduce an American-style class action that were rejected in the present effort to draft a federal code of civil procedure and the workings of existing group litigation devices, I try to explore the major reasons for the Swiss reluctance to add the class action to the country’s existing procedural vehicles