Switzerland has just modified its declarations regarding the operation of Chapter 2 of the Evidence Convention in its territory. Chapter 2, as you’ll recall, is the part of the Convention that deals with the taking of evidence without compulsion, either by a diplomatic officer or consular agent (Articles 15 and 16) or by a commissioner (Article 17).

Until now, Swiss practice has been typical and somewhat opaque. Here is the prior version of the Swiss declarations:

In accordance with Article 35, Switzerland declares that evidence may be taken according to Articles 15, 16 and 17 subject to prior authorization by the Federal Justice and Police Department. A request for authorization must be addressed to the Central Authority in the canton where the evidence is to be taken.

The declaration provided that permission was required in all cases, and it said nothing about what the terms on which permission would or would not be granted or the procedure to be followed. This is quite typical of Chapter 2 practice.

Here is the new declaration:

1. In accordance with Article 35, Switzerland declares that the taking of evidence in accordance with Articles 15, 16 and 17 requires prior permission from the Federal Office of Justice (FOJ). Paragraph 3 below applies notwithstanding. A copy of the request for permission must be sent to the central authority of the canton where the evidence is to be taken.
2. The commissioner within the meaning of Article 17 may take evidence himself or only supervise the taking of evidence. He will ensure that the provisions of the Convention and the conditions attached to the permission or the conditions set out in paragraph 3 below are observed. In the event of an impediment, the commissioner may appoint a representative. The court may appoint several commissioners.
3. Persons who are staying in Switzerland may be questioned or examined without prior permission by a commissioner located abroad or take part in a hearing abroad by means of a conference call, videoconference, or by any other electronic means of audio or video transmission, providing the following conditions are satisfied:
   1. the FOJ and the central authority of the canton in the territory of which the person concerned is staying at the time of the conference call or videoconference (Article 19) are given reasonable advance notice of the date of the conference call or videoconference; advance notice is considered to be reasonable if the FOJ receives the information in question at least fourteen days before the conference call or videoconference;
   2. the following information accompanies the advance notice given:
      • the name and reference number of the action;
      • the name of the competent court;
      • the names and addresses of the parties and their representatives (including representatives in Switzerland, if any);
      • the name and the private or professional address of the person concerned and the name of the canton where they are staying at the time of the conference call or videoconference;
      • the names, if they are known, and positions of the other persons taking part in the conference call or videoconference;
      • the nature and object of the action and the subject of conference call or videoconference;
      • the exact name of the means of communication used and, if they are already known, the login details;
      • the name of a contact person for the FOJ and the cantonal central authority
   3. if the court has appointed a commissioner, a copy of the decision is attached to the advance notice; it includes, among other things, the commissioner’s name and private or professional address;
   4. the authorities may demand additional information;
   5. the cantonal central authority or a different authority it has designated may take part in the conference call or the videoconference (Article 19);
   6. a declaration by the person concerned acknowledging that they have read the present conditions and consenting to take part in the conference call or videoconference is attached to the advance notice;
   7. the person concerned may withdraw their consent at any time;
   8. the rules laid down in Articles 20 and 21 must be respected;
   9. the person concerned has the right to be questioned and to communicate in their mother tongue and may ask for a translation of the key statements made by the other persons taking part in the conference call or the videoconference;
   10. the technology employed guarantees an adequate level of security of personal data against any unwarranted processing; during a videoconference, all the participants must receive the audio and video signal simultaneously;
   11. the results of the taking of evidence are used exclusively for the purposes of the proceedings in the context of which the evidence was taken.
4. Requests within the meaning of paragraph 1 above and the advance notice within the meaning of paragraph 3 above may be submitted electronically to the FOJ; they must be written in an official language of the canton concerned or accompanied by a translation.
5. The provisions of Swiss criminal law on secrecy obligations, particularly article 273 of the criminal code (RS 311.0), remain applicable.

There is much of interest here. First, the role of the commissioner is elaborated. He or she is responsible for compliance with the terms of the Convention and any special terms that the Swiss authorities may impose. He or she may take the evidence, or may merely supervise the taking of the evidence (which, I think, means administering the oath and ensuring that the lawyers or foreign judges who question the witnesses do not exceed the bounds of the permission granted).

Second, when the commissioner is abroad or when the witness is participating in a hearing taking place abroad, under Paragraph 3 of the new declaration, a person “staying in Switzerland” may be questioned without prior permission. This is, on its face, a significant liberalization. Its meaning is not perfectly clear, to me at least, because Paragraph 1 states that taking of evidence by commissioner “requires prior permission” from the Federal Office of Justice, but that “Paragraph 3 below applies notwithstanding.” I think but am not certain that this means that Paragraph 3 trumps Paragraph 1, but the wording is unusual; if I am right about the meaning, it would have been more natural to say, in Paragraph 3, that “Notwithstanding Paragraph 1, persons who are staying in Switzerland may be questioned or examined without prior permission …” But assuming that I am right about the meaning, this is a major step forward.

One twist is that Paragraph 3 only applies when the commissioner is “located abroad.” In states with very well-developed commissioner practice (I am looking at you, France), it is usual for the commissioner to be a French lawyer. But Paragraph 3 seems to rule out a Swiss lawyer as commissioner in practice, unless there is a Swiss lawyer residing abroad who wants to undertake that role. If we assume an American proceeding, then perhaps one or even both of the lawyers for the litigants could be appointed as commissioner. But then the advocates would also have responsibilities to ensure compliance with the Swiss government’s limitations, which does not seem ideal. Perhaps the US judge could act as commissioner, but I think it highly unlikely that a US judge would want to undertake that role, given the usual attitude of American judges towards the taking of evidence outside of court, which is that they do not want to be involved. (The new declarations do open up the possibility of a Swiss witness testifying remotely at a US trial, which under FRCP 43(a) can be permissible “for good cause in competing circumstances and with appropriate safeguards,” and in such a case I think a US judge appointing himself or herself as commissioner makes very good sense). A third possibility is that US lawyers who do not represent either party could undertake this work as a neutral subject to the ethical strictures of Rule 2.4 of the Rules of Professional Conduct (or whatever is the equivalent in the lawyer’s jurisdiction). If I may, I think I would be very well-suited to undertake this work and will find a way to make my availability known!

Another possible twist is that Paragraph 3 applies only to taking evidence from “persons who are staying in Switzerland.” That is an odd phrase. I do not know whether the Swiss government intends to limit the application of Paragraph 3 to persons who happen to be staying in Switzerland but who are not Swiss residents, or whether it means that anyone who is in Switzerland may be questioned under Paragraph 3. I suspect it is the former, and that the odd wording is just a consequence of Switzerland providing its declarations in English as well as in French. The French version reads: “Les personnes séjournant en Suisse.” My French is not good enough to know whether séjourner (as compared with the unambiguous visiter, or the neutral-sounding rester, or habiter, unambiguous in the other direction) invariably connotes a temporary stay, but I suspect it does, given the English connotation of sojourn. Question: can a Swiss national residing abroad be questioned without permission, even if he is only sojourning in Switzerland for a time?

Third, the new declaration emphasizes what has always been the case: the witness’s participation must be voluntary, and the Swiss law on secrecy obligations continues to apply. In practice, a Swiss witness who refuses to answer a question on the grounds that an answer would violate Swiss law cannot be compelled to answer the question in a Chapter 2 examination, and a litigant wanting to press the issue would likely have to proceed instead under Chapter 1, so that a Swiss court would be in a position to decide whether the witness must answer the question.

Finally, the Swiss have shown interest in the HCCH’s efforts to promote electronic transmissions of requests under the Convention and have made it clear that requests may be submitted electronically. This is all to the good.