On January 1 2011, the first unified federal codes of civil
and criminal procedure will come into force in Switzerland.
This will be the last stage of a large scale legal reform which
started in 1996 and dramatically modified the Swiss judicial
The present paper offers firstly a brief overview of the
Swiss legal system. It then presents the major changes that
have taken place since 1996, and exposes how these changes
affect the legal profession and more specifically the practice
of the bar.
The new unified codes will remove today's barriers which
hinder a global Swiss legal market. The Swiss law firms
employing highly trained and specialised attorneys will be able
to offer their skills throughout Switzerland without facing
procedural and legal obstacles.
Swiss legal overview
Like the United States and Germany among others, Switzerland
is a federal state. The federal state, the Swiss Confederation,
comprises twenty-six federated states called Cantons.
Switzerland is a multilingual country, German being the most
spoken language, with French and Italian being second and
third. Each federal act is adopted in all three languages,
while cantonal acts are passed in the official language of the
Switzerland is not part of the European Union and European
laws and regulations therefore do not apply.
The Swiss Constitution states that the Cantons are sovereign
to the extent their sovereignty is not limited by the federal
Constitution itself. They exercise all rights that are not
vested in the Confederation. Therefore, the Confederation has
the power to establish federal laws regarding a particular
matter, only if such a power is explicitly granted by the
federal Constitution. In the absence of such power, each Canton
remains competent to regulate the matter at hand by adopting
its own laws and regulations.
Under the 1848 federal Constitution, the Cantons were in
charge of commercial, civil and criminal law, and Switzerland
had therefore 26 different codes regulating these matters.
Twentieth century legal system
Under the federal Constitution passed in 1874 and its
subsequent amendments voted at the end of the nineteenth
century, the Confederation was granted the power to unify
commercial, civil and criminal law, by adopting new federal
codes governing these matters. It did so over the subsequent
years, so that a Swiss Code of Obligations was adopted by the
federal Parliament in 1881. This was followed by a Civil Code
in 1907, a new Code of Obligations in 1911, and finally a
Criminal Code in 1937.
However, the Confederation was not granted the power to
unify the procedural laws regulating these matters. Each Canton
therefore adopted a code of civil procedure (determining the
procedure before civil and commercial courts) as well as a code
of criminal procedure. The Confederation also passed its own
code of criminal procedure. However, until recently, this code
was only used for some specific and serious offences against
national security, directly brought before the federal Supreme
Court. All other cases were (and to a large extent still are)
brought before courts established by the Cantons. Therefore,
the procedure before Swiss courts was, and will continue until
2011, to be governed by twenty-six codes of civil procedure and
twenty-seven codes of criminal procedure.
The practical result of this situation has been that Swiss
law firms located in a given Canton had the ability and
knowledge to advise clients on issues of substantive Swiss law
irrespectively of the location of the client. But they were not
necessarily qualified to assist them in litigation if that
would involve the courts of another Canton.
Twentieth century bar practice
Before June 1 2002, the admission to the bar was not
regulated at the federal level and each Canton had its own law
regarding the practice of the bar and the surveillance of the
It was difficult for an attorney admitted to the bar in one
Canton to practice in another Canton. A lawyer who successfully
passed the bar exam in one Canton was recognised by all other
Cantons. However, an attorney wishing to relocate had to go
through a cumbersome process of registration in the new Canton
Moreover, due to the different civil and criminal codes of
procedure enforced by each Canton, as well as to the language
barrier between the three regions of Switzerland, it was rather
difficult for a lawyer to practice outside the Canton where
they had been initially trained.
This situation, added to the small size of the population in
each Canton, resulted in most lawyers working in small local
law firms, with a limited number of partners, associates and
trainees in each firm.
The new federal Constitution of 1999
Judging that the 1874 federal Constitution was obsolete, the
Swiss Government (the federal Council) submitted to the
Parliament on November 20 1996 a new federal Constitution
In its message to the Parliament, the federal Council
exposed in great detail the need to implement a vast legal
reform, including both a unification of civil and criminal
procedures, as well as a new organisation of the federal
judiciary. However this reform was not included in the new
federal Constitution adopted by the Swiss people and Cantons on
April 18 1999 and enacted on January 1 2000. It was decided
that the new Constitution would be amended at a later stage and
that the reform of the justice would be adopted at the occasion
of this amendment.
The new Constitution did however grant the explicit power to
the Confederation to legislate regarding the admission to the
bar and the regulation of the legal profession.
EU bilateral agreements
On June 6 1999, two months after the adoption of the new
federal Constitution, the European Union and Switzerland signed
seven bilateral agreements including the Agreement on the Free
Movement of Persons, which came into force on June 1 2002. This
agreement allows for the free movement of persons and workers
between Switzerland and the EU, and contains provisions for a
number of regulated professions, including attorneys. It was
left to each party to adopt specific regulations in order to
implement the agreement at the national level.
Free Movement of Attorneys Act
Considering the new legislative power vested in the
Confederation by the 1999 federal Constitution, the Swiss
Parliament voted, on June 23 2000, for the new federal Act on
the Free Movement of Attorneys.
The Act came into force simultaneously with the bilateral
Agreement on the Free Movement of Persons, on June 1 2002, to
fulfil several purposes. It sets a core of minimal rules
regarding admission to the bar for Swiss attorneys. The Cantons
remain in charge of the administration of the bar exam. Once a
trainee has successfully passed the exam, he can register with
a cantonal bar. He is then allowed to practice law everywhere
in Switzerland without further formalities.
It also sets exhaustive professional rules for attorneys.
Most ethical rules are indeed incorporated in the Act. Finally,
it determines which conditions apply to foreign European
lawyers willing to practice in Switzerland.
Many barriers towards the unification of the Swiss legal
market disappeared when the federal Act on the Free Movement of
Attorneys came into force. However, it was only a first step,
as the procedural and linguistic obstacles remained.
The Swiss authorities were fully aware that guaranteeing the
free movement of attorneys was an important but insufficient
step in the removal of existing barriers towards a unified and
efficient Swiss legal market.
Therefore, immediately after the federal Constitution of
1999 was enacted, the federal Council and the Parliament
resumed their efforts to pass a vast legal reform. This
included both a unification of civil and criminal procedures,
as well as a new organisation of the federal judiciary.
On October 8 1999, less than six months after the new
Constitution was adopted, the Parliament passed a
constitutional amendment. This was approved on March 12 2000 by
an overwhelming majority of the Swiss population (86.4%) and
the twenty-six Cantons unanimously.
This amendment totally reorganised the federal judiciary,
establishing a new federal criminal court as well as a federal
administrative court, and redefining the powers and purposes of
the federal Supreme Court.
Most importantly, the amendment gave the power to the
Confederation to unify both criminal and civil procedures
within Switzerland, by passing new federal acts exhaustively
governing these matters, and replacing the present twenty-six
The amendment came gradually into force, with all its
provisions being fully implemented since January 1 2007.
The new federal judicial organisation
Notwithstanding the enactment of the constitutional
amendment regarding the reform of the justice, and even after
the unified codes of civil and criminal procedure will come
into force, the cantonal courts will remain competent to hear
most cases arising under Swiss law. However, they will follow
the new procedures established by these codes instead of their
own cantonal procedural laws.
Although these cantonal courts will continue to deal with
most disputes in the future, the constitutional amendment of
2000 established new federal courts with specific prerogatives.
The parliament therefore enacted new federal acts regarding the
federal criminal court, the federal administrative court and
the federal Supreme Court.
The Federal Criminal Court Act was passed on November 4
2002, and came into force on August 1 2003. It establishes the
new federal criminal court, which deals with offences against
national security, such as terrorism, but also with large scale
financial felonies, such as money laundering or corruption.
Except for these limited prerogatives, the cantonal criminal
courts remain in charge of all other offences committed in
The Federal Administrative Court Act and the Federal Supreme
Court Act were both passed on June 17 2005 and came into force
on January 1 2007. The first of these acts establishes the
federal administrative court, which deals with appeals against
decisions made by the federal administration. The second of
these acts reaffirms the role of the federal Supreme Court, in
Lausanne, as the Supreme Court of the country, and determines
the specific procedure applicable before this court.
Federal Code of Criminal Procedure Act
Considering the enactment of the constitutional amendment
regarding the reform of the justice, the federal Council
nominated a commission of professors, attorneys, judges and
other legal scholars, entrusted with the writing of a draft
project for a new unified code of criminal procedure.
The draft project was presented to the Swiss Parliament. It
was further discussed and modified. A common text was agreed on
by both chambers of Parliament.
The Federal Code of Criminal Procedure Act was adopted by
the Parliament on October 5 2007. This Act will come into force
on January 1 2011 and will govern all matters regarding the
procedure in criminal cases, no matter if these cases are
brought before the newly established federal criminal court or
a cantonal court.
The time period between the moment the Act was passed by
Parliament and its coming into force is deliberately long, in
order to allow all Cantons to adapt the organisation of their
respective judiciary to the imperatives of the new law.
The new code of criminal procedure is mainly a compromise
between the different legal traditions represented in
Switzerland. More specifically, in French-speaking Cantons, the
independent investigating judge, who is today in charge of most
cases before the trial, will cease to exist. His powers will be
transferred to the office of the public prosecutor. The public
prosecutor will be in charge of both the investigation and the
prosecution before the trial court.
In order to balance the increase of the prosecutor's powers,
the new code gives rights to the defence, including the right
of the defendant to be assisted by a lawyer immediately after
his/her arrest by the police (first-hour attorney).
Federal Code of Civil Procedure Act
In its endeavour to pass a New Code of Civil Procedure the
federal Council and the Swiss Parliament followed a largely
similar process to that of the new Criminal Code. A commission
was appointed by the federal Council, and a project was drafted
by the learned members of the commission.
The project was then sent to the Parliament for further
discussion and amendments.
On December 12 2008, the Parliament passed the Federal Code
of Civil Procedure Act. This Act will come into force on
January 1 2011, together with the new Criminal Code, and will
govern all matters regarding the procedure in civil and
Unlike the Criminal Code, the Cantons will have less time to
adjust to the new code of civil procedure. This is partly due
to the fact that the federal Council wants both codes to come
into force at the same time, and partly to the fact that the
differences between the present cantonal codes are less
dramatic as they were between the cantonal codes of criminal
procedure. It nevertheless remains that it will be a challenge
for both lawyers and judges to be ready to face the courts in
2011 pursuant to rules of procedure which shall apply
throughout the country, but that will be new for all.
Independently of their previous experience, all attorneys
will have to study from the start, in order to achieve the
level of proficiency expected by clients, at the time the new
codes will come into force.
Switzerland is a small country, with three official
languages, direct democracy, and a federal system consisting of
twenty-six Cantons, each pursuing their own priorities, goals
The people of Switzerland are often seen abroad as
conservatives, for their refusal to join the European Union, as
well as for their reluctance to enact regulations imposed by
Due to its very unique institutional characteristics, and
its own conservatism, major changes in Switzerland happen at a
slow pace. Switzerland is indeed not used to cataclysmic
events, which would abruptly modify the political or legal
The slow cadence adopted by the Swiss authorities when it
comes to the legal reform presented in this paper is not
unusual for Switzerland. That being said, although the work
started in 1996 and will only come integrally into force
fifteen years later, this reform is a dramatic shift for the
country's judicial landscape. The deliberate slow pace allowed
the work to progress consensually, without encountering major
resistance. As a result, the unified criminal and civil
procedures for the entire country, which seemed a remote
possibility only ten years ago, will be a reality as of January
These new federal codes of criminal and civil procedure, and
the already enforced federal Act on the Free Movement of
Attorneys, remove many barriers that continue to hinder the
move towards a global, or at least regional, Swiss legal
market. Swiss law firms have regularly advised clients on
issues of Swiss substantive law irrespectively of the location
of the client in Switzerland. As the new codes of procedure
come into force, it can be expected that the Swiss firms will
be able to handle litigation matters without being confined to
the borders of their Cantons.
Although the process has been long and discreet, on January
1 2011, the Swiss judicial system will achieve its dramatic
evolution towards a modern, unified, and efficient legal
market, fully prepared for the challenges of the 21st
Lenz & Staehelin
Dr iur, Lecturer on contract law (Fribourg
Former chairman of the Geneva Bar
Benoît Chappuis is the managing partner of
Lenz & Staehelin in Geneva. His practice covers
litigation and arbitration, general civil litigation,
criminal litigation, bankruptcy and debt collection,
enforcement of foreign judgements and awards and
international legal assistance. He was a deputy judge
with the Geneva Court of Appeal from 1992 to 2007, and
a member of the Geneva Superior Council of the
Magistrature (a disciplinary council for judges) from
2001 to 2007.
Lenz & Staehelin
Lic iur (Geneva University)
LLM (Georgetown University)
Daniel Tunik is a partner of Lenz & Staehelin.
His practice covers litigation and arbitration,
international legal assistance, contract and
commercial, intellectual property, employment and
pensions. He is a member of the board of the
Self-Regulated Body of the Swiss Lawyers and Notaries
Federation, a supervision authority under the Swiss
Federal Act concerning the fight against money
laundering in the financial sector.