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Switzerland: Federal Procedural Laws Enacted

(Aug. 25, 2010) On January 1, 2011, several federal procedural laws will become effective in Switzerland. These will replace the corresponding laws of the 26 cantons as well as several federal enactments. These new federal laws are:

Some of these new federal laws had a long gestation period. Efforts to unify criminal procedure led to a draft by a committee of experts in 1996 and to a government draft in 2001 that was submitted to the lengthy legislative process. In October 2007, the bill had been accepted by both houses of Parliament, and on January 24, 2008, the referendum period had passed without a referendum having been initiated (Bundesamt für Justiz, Vereinheitlichung des Strafprozessrechtes,
(last visited Aug. 24, 2010)). The draft of the Code of Civil Procedure that became law commenced its legislative process in 2003 (Bundesamt für Justiz, Vereinheitlichung des Zivilprozessrechts,
(last visited Aug. 24, 2010)).

Scholarly voices had long pleaded for a unification of Swiss procedural law. For civil procedure, the first efforts at unification were already made in 1868 and efforts were reiterated in 1924, 1933, and 1961 (François Bohnet, Les defense en procedure civile suisse, 129 II ZEITSCHRIFT FÜR SCHWEIZERISCHES RECHT [ZSR]185 (2009). In criminal procedure, the lack of uniformity was also much decried prior to the reform (ROBERT HAUSER& ERHARD SCHWERI, SCHWEIZERISCHES STRAFPROZESSRECHT 50 (2002)). Before 2002 (for criminal procedure) and 2005 (for civil procedure), reform was not possible, because until then the Federation lacked legislative power over these procedural matters. This obstacle was removed in 2002 for criminal procedure and in 2005 for civil procedure, when the Swiss Parliament resolved to give effect to certain reform provisions on the administration of justice that are contained in the Swiss Constitution (Bundesverfassung, Dec. 18, 1998, SYSTEMATISCHE SAMMLUNG DES BUNDESRECHTS 101, arts. 122 & 123, but that had required a special referendum that passed in the year 2000 (Bundesamt für Justiz, Justizreform,
(last visited Aug. 24, 2010)).

In addition to unifying procedural law, the new federal codes also bring much innovation. The Code of Criminal Procedure introduces summary proceedings that have borrowed some concepts from the practice of plea bargaining in the United States (Felix Bommer, Abgekürztes Verfahren und Plea Bargaining im Vergleich, 128 II ZSR 5 (2009). The Code of Civil Procedure places much emphasis on the opportunities to avoid litigation through conciliatory proceedings (Luca Marazzi, Erranze alle scoperta del nuovo Codice di procedura civile svizzero, 128 ZSR II 323, 379 (2009)).