The Swiss government has published a draft bill that, if enacted, would authorize Switzerland to modify its declarations under Article 15 to 17 of the Evidence Convention to give its permission generally for willing witnesses to be questioned in foreign proceedings by telephone or video conference. By way of background, Chapter 2 of the Convention provides methods for taking evidence without compulsion that are simpler and more straightforward than a letter of request under Chapter 1. From an American perspective, the most useful of these is Article 17, which allows the taking of evidence from a willing witness by commission. The American judge issues a commission authorizing someone (typically a lawyer in the foreign country, but there are other possibilities) to take the evidence. This is the traditional common-law method of authorizing the taking of evidence outside the jurisdiction. The commissioner then swears in the witness, and the US lawyers examine the witness as they would in a US deposition. But Article 17 requires the permission of the foreign authorities, and most parties to the Convention have not given their permission generally. Thus it is generally necessary to make a request to the foreign authority, even when the witness is willing to appear without compulsion. Switzerland is proposing to give its permission generally, with some conditions attached, thus eliminating the need for permission in each case.

According to an article by Swiss lawyer Nino Sievi, it will still be necessary to give notice to the relevant Cantonal authority, even if it is not necessary to seek permission, and the notice will have to contain essentially the same information as a request would have. The Swiss authorities will have the right, which I expect would be exercised rarely, to participate in the proceedings if they wish. The new Swiss declaration is also expected to apply only to remote testimony, i.e., it still will not be possible for American lawyers to travel to Switzerland to take a deposition without permission.

This is a welcome development, as the requirement of permission adds cost and delay to proceedings. It will still be important for parties to consult with US counsel and Swiss counsel experienced in cross-border evidence-gathering, to ensure that all appropriate steps are taken, that the Swiss conditions are satisfied, that a proper commissioner is named, etc. But such matters will now be somewhat simpler. The new measure, if adopted, is not expected to come into force until sometime in 2024.