Features – Introduction to the Swiss Legal System: A Guide for Foreign Researchers

Fridolin M.R. Walther is a Lecturer and Researcher at the Institute for Swiss and International Civil Procedure and Private International Law of the University of Bern. After legal studies at the University of Bern, Switzerland, he passed the bar exam in 1993 and holds an LL.M. from Yale Law School. In 1995 he started to teach legal research on the Internet and has published a number of articles on legal implications of the Internet. His other major field of interest is national and international civil procedural law. From fall 2000 on, he has been teaching exercises in international procedural law at the University of Bern. Since 1998 Fridolin has been a Bar Examiner and, since 2000, a member of the Independent Review Panel of the University of Bern. He also publishes a widely used website that gives a substantive overview of electronic Swiss legal resources on the Internet.


Table of Contents

A. The Swiss Legal System – Some Basics
I. The History of Switzerland – A Short Overview
II. The Federal System
1. Federal Level
a) In General
b) The Parliament (Legislative)
c) The Federal Council (Executive Branch)
d) The Federal Supreme Court (Judiciary)
2. Cantons
3. Local Authorities
III. Language
IV. Political Rights
V. The Principle of Cooperation
VI. The Swiss Judicial System
B. Doing Research Concerning Swiss Law
I. Primary Legal Information
1. Treaties
2. Legislation
a) Paper Copy
b) Electronic Version
3. Case Law
a) Paper Copy
b) Electronic Version
II. Law Journals
III. Parliaments
IV. Executives
V. The Legal Profession
1. Bar Associations
2. Law Firms
3. Law Societies
VI. Libraries
VII. Legal Publishers and Bookstores
VIII. Electronic Research Means
1. Legal Databases
2. Current Legal News
3. Discussion Lists
4. Link Lists
C. Standard Swiss Texts – A Small Bibliography
I. Anti-Trust Law
II. Arbitration Law
III. Bankruptcy Law
IV. Business Law
V. Civil Code
VI. Company Law
VII. Conflict of Laws
VIII. Constitutional Law
IX. Environmental Law
X. Intellectual Property Law
XI. Procedural Law
XII. Property Law
XIII. Securities Law
XIV. Tax Law
D. Various Other Information

A. The Swiss Legal System – Some Basics

I. The History of Switzerland – A Short Overview

Switzerland is a federal state that lies at the heart of Europe and is bordered by Germany (to the north), Austria and the Principality of Liechtenstein (to the east), Italy (to the south) and France (to the west).

It’s history is normally traced back to the year 1291 when the representatives of Schwyz, Uri and Unterwalden concluded the Federal Charter of 1291 (the so-called “Bundesbrief“) and founded a federation against foreign countries. In the following years more and more cantons (states) joined this federation. This unique combination of rural areas and of major cities (Zürich, Bern, Lucerne) was strictly based on the principle of political equality of all participating cantons. This principle still plays a major role today: Changes of the Federal Constitution must be approved by a majority of the people as well as of the cantons.

It was not before 1848 that the federation of autonomous cantons was replaced by a true constitutional democracy with a federal structure and an independent judiciary. The first federal constitution of 1848 was soon replaced by a second one in 1874. On April 18, 1999, the people and the cantons accepted a new Federal Constitution that entered into force on January 1, 2000.

Since 1815, Swiss foreign policy has been governed by the fundamental principle of neutrality. Switzerland remained neutral during the First as well as during the Second World War. It is neither a member of the European Union (EU), the European Economic Area (EEA), the United Nations (UN), nor of the NATO. In 1960 it joined the European Free Trade Association (EFTA) and in 2000 the Swiss people accepted a combined set of seven bilateral agreements with the European Union. Switzerland is a member of many other international organisations.

<Table of Contents>

II. The Federal System

1. Federal Level

a) In General

According to the Federal Constitution, the political structure of Switzerland consists of three different political levels: the Confederation, the cantons and the local authorities. The Confederation only has authority in those areas in which it is empowered by the Constitution. All the other tasks are dealt with by the cantons. In some areas, the Confederation and the cantons share certain responsibilities.

The Federal Constitution is the legal foundation of the Confederation. It contains the most important rules for the functioning of the Confederation and it guarantees the basic rights of the people and the participation of the public.

b) The Parliament (Legislative)

The Federal Assembly, the Swiss parliament, is a bicameral one. It is composed of two chambers: The Council of States and the National Council. The chambers meet normally for four sessions a year, each of approx. three weeks. Both chambers are having equal rights and equal status.

The National Council is the direct representative of the people and consists of 200 members. The seats are distributed according to the number of inhabitants in each canton. The legislative period is four years. The National Council is not a professional chamber and its members receive only a (rather small) compensation for expenses.

The Council of States represents the cantons. Each canton, large and small, is entitled to two representatives. The cantons decide on the system of electing members and the length of office on their own.

Every new bill must be debated and approved by both chambers. The route to a new law is a complex and lengthy one. The process normally consists of the following stages: the initiative stage, the drafting stage, the verification stage, the final decision stage and the entry into force. It is important to note that in almost all cases a new bill is not introduced by parliamentarians, but by the Federal Council.

c) The Federal Council (Executive Branch)

The federal executive branch, the so-called Federal Council, has 7 members. The Federal Council is elected individually by the bicameral federal parliament for a four-year period. A federal councilor cannot be removed from his post before the four-year period is up. Each year, a different member becomes Federal President. Each Federal Councilor runs one of the seven federal departments:

  • Federal Department of Foreign Affairs (DFA)
  • Federal Department of Home Affairs (DHA)
  • Federal Department of Justice and Police (DJP)
  • Federal Department of Defense, Civil Protection and Sports (DDPS)
  • Federal Department of Finance (FDF)
  • Federal Department of Economic Affairs (DEA)
  • Federal Department of Environment, Transport, Energy and Communications (DETEC)

Decisions of the Federal Council are made collectively through majority decisions and are promoted with a unified front. This unique practice is known as the collegial system.

d) The Federal Supreme Court (Judiciary)

The Swiss Federal Supreme Court consists of 30 judges and 15 substitute judges who are elected by the Federal Assembly. The Federal Supreme Court is the final instance of appeal for civil as well as criminal cases. Furthermore, it deals with public and administrative law cases and arbitrates in disputes between the Confederation and the cantons and in disputes between two (or more) cantons. The court has no discretion to refuse to hear a case. Every year it decides several thousand cases.

The Federal Insurance Court in Lucerne is a special department of the Federal Supreme Court with 9 judges and 9 substitute judges. It hears only disputes concerning public-law insurance claims.

The Swiss Federal Supreme Court’s jurisdiction is limited by the Federal Constitution in a special way: The Constitution provides that federal statutes passed by the Federal Assembly are not subject to any constitutional review by the Supreme Court. The rationale behind this rule is that all statutes are either adopted by a popular vote (in case of a referendum) or remain unchallenged (in case no referendum has been submitted). Either way, each statute is enacted only after the people voted on it or decided not to vote on it. By giving the direct democratic rights of the people priority over any form of judicial review, the Federal Constitution limits by intent the jurisdiction of the Federal Supreme Court. But just recently the Supreme Court decided in a major ruling that it has the power to review federal statutes in cases where otherwise basic human rights violations would occur. It is important to note that the Supreme Court has jurisdiction to review the constitutionality of cantonal laws.

At the moment, the federal judicial system is being reviewed, and substantial changes are expected to take place in the next years.

2. Cantons

Among the approx. 30 countries in the world with a federal structure, Switzerland is most likely the smallest one. Each of its 26 cantons (states) has its own constitution, its own executive, its own parliament, its own courts and its own law. Three cantons (Unterwalden, Appenzell and Basel) are for historical reasons divided into two so-called half-cantons. The newest canton is the canton of Jura, which seceded from the canton of Bern in 1978. The cantons enjoy a great deal of autonomy and freedom of decision-making.

3. Local Authorities

All cantons are divided into municipalities or communes of which there are at present nearly 3,000. Around 20% of these municipalities have their own parliament. In the other 80%, decisions are taken by way of direct democracy in the local assemblies. The scope of municipal autonomy is determined by the cantons and therefore varies widely. Some municipalities have more inhabitants than some of the small cantons, others just a few hundred.

<Table of Contents>

III. Language

Switzerland has four official national languages: German (> 70%), French (20%), Italian (< 5%) and Rhaeto-Romanic [Romansch] (< 1%). There are German-speaking and French-speaking cantons, one Italian-speaking canton and cantons in which German and French are spoken. In one canton (Grisons), German, Italian and Rhaeto-Romanic are spoken.

The German language is used only for writing. For speaking, numerous dialects (so-called Swiss-German) are used. Not every Swiss speaks all four languages. Many only speak one language fluently and have some basic knowledge of another language and of English.

The Confederation publishes all its statutes and most of its other documents in German, French and Italian. The decisions of the Swiss Federal Supreme Court are handed down either in German, French, Italian or Rhaeto-Romanic, but are not officially translated into the other three languages. In many cases, unofficial translations are available by (private) law journals.

The cantons publishes their statutes and other legal materials in their official language or languages.

Almost no statutes or decisions are available in English (see the small bibliography for details).

<Table of Contents>

IV. Political Rights

Swiss people have many different political rights. Not only can they elect the members of the Federal Assembly, but also the members of the cantonal executive and the cantonal parliament, as well as the local executive body and – if existing – the local parliament.

In addition, on the federal level all changes of the Constitution and the membership to some international organizations must be accepted by the majority of the people and the cantons.

With the signatures of 100,000 people a so-called popular initiative can be launched and a change of the Federal Constitution be proposed. The popular initiative must be discussed by both chambers of the Federal Assembly. The parliament can recommend to accept or reject the initiative or can make its own counter proposal. The initiative is then voted on by the people and the cantons.

The people also have the right to referendum. If 50,000 signatures are collected within 100 days, a new law enacted or certain international treaties accepted by the Federal Assembly are subjected to a popular vote. For acceptance only a simple majority of the people is required.

The people are also entitled to address requests, suggestions and complaints to the authorities (so-called right to petition).

On the cantonal and local level, people enjoy similar and often even additional political rights.

In a few cantons (Glarus and Appenzell Innerrhoden) people still vote in the form of the “Landsgemeinde”, a form of open-air meeting of all citizens.

<Table of Contents>

V. The Principle of Cooperation

Because of Switzerland’s linguistic, political, geographical and also religious diversity, the political system emphasizes political consensus. Readiness to compromise is one of the most essential elements of Swiss politics. There is no opposition party, no presidential veto, and no strict party discipline.

The four leading parties of Switzerland have formed an informal coalition government for decades and are all represented in the Federal Council.

In theory, the Federal Assembly as well as the people should always support every proposal made by the Federal Council, since the Federal Council consists only of members of the four leading parties. However, in reality, proposals of the Federal Council are often rejected by the Federal Assembly and/or the people. But this does not result in any votes of confidence or resignations or other crises, since the members of the Federal Council cannot be removed from their posts before the Council’s election period of four years has elapsed.

<Table of Contents>

VI. The Swiss Judicial System

Art. 122 of the Federal Constitution provides that the organization of the courts as well as the jurisdiction in civil and criminal matters remains with the cantons. Because of its federal structure, the 26 cantons have retained a considerable degree of law-making authority. Accordingly, the organization of the courts and the procedure before them is primarily a matter for the cantons to regulate. The Swiss court system is traditionally divided into civil, criminal, and administrative courts.

Much like the U.S. Supreme Court, the Swiss Federal Supreme Court in Lausanne is primarily a court of last resort, but, unlike in the United States, there are – at least at the moment – no lower federal courts.

The procedural law applied by the cantonal courts is thus primarily state law (with various incursions of federal law and public international law) while, depending on the area, substantive law can either be federal law (this is the general rule in regard to private and criminal law) or state law (in several areas of public law).

The Federal Statute on Debt Enforcement and Bankruptcy governs the enforcement of money claims and claims for the furnishing of security against private individuals and legal entities of private law. The enforcement of non-monetary claims is governed by cantonal law.

<Table of Contents>

B. Doing Research Concerning Swiss Law

Lawyers normally start their research by looking at commentaries or standard textbooks on a given subject. For a non-Swiss researcher, it is highly recommendable to first read the Federal Constitution in order to find out whether federal law or cantonal law or both applies. The next step would be to look up a federal or cantonal collection of law and to read the applicable statutes and regulations. After that, one should try to find cases that applied the statutes or regulations in question. The most efficient way to do this is to use the Swisslex-Westlaw database. Looking at the official report that accompanied the draft of the statute and at the parliamentary deliberations often clarifies the meaning of federal and cantonal statutes.

I. Primary Legal Information

1. Treaties

Switzerland is a member of many international bi- and multilateral treaties and conventions. These are all to be found (in the three official languages) in the international section of the Systematic Collection of Swiss Law. Since Switzerland does not follow a dualistic approach, international treaties that are self-executing have to be applied without any transformation into domestic statutes directly by courts and administrative authorities. Please note that the international section of the Systematic Collection of Swiss Law is not updated very frequently.

2. Legislation

a) Paper Copy

Drafts of all statutes elaborated by the Federal Council are published together with an official report in the Federal Gazette. After the deliberation of the drafts by the Federal Assembly, all the bills are published again in the Federal Gazette. From the day of this publication on, a delay of 100 days starts running for the collection of 50,000 signatures for launching a referendum. In case that nobody asks for a referendum or in case people voted to accept the new statute, it will be published in the Official Collection of Swiss Law. After the new statute enters into force, its text will be integrated into existing statutes where necessary (so-called consolidation) and added to the Systematic Collection of Swiss Law. Federal Regulations of the Federal Council or of other federal authorities are also published in the Official Collection of Swiss Law as well as in the Systematic Collection of Swiss Law. The same is, of course, true for all changes of the Federal Constitution.

Please note that the Federal Gazette, the Official Collection of Swiss Law and the Systematic Collection of Swiss Law are all published in German, French and Italian, but not in English. Federal statutes can be ordered online through the Federal Publications and Supplies Office.

Most of the cantons follow a similar procedure.

b) Electronic Version

Official versions of the Federal Gazette, the Official Collection of Swiss Law and the Systematic Collection of Swiss Law are all available online. A fully searchable unofficial version of the Systematic Collection of Swiss Law is also available free of charge. About half of the 26 cantons are publishing their Official Collection of Law on the Internet.

Please note that only the versions printed on paper have the force of law.

3. Case Law

a) Paper Copy

The decisions of the Swiss Supreme Court are handed down either in German, French, Italian or Rhaeto-Romanic and are not officially translated into the other three languages. Five to ten percent of the decisions are published officially by the court in its Collection of Cases on paper. Many officially published as well as other cases are translated and published by law journals. Most of them are collected by the commercial database Swisslex-Westlaw.

A selection of judicial decisions of the Federal Council and other federal commissions, agencies and independent review panels are published officially in the Collection of Decisions of Federal Authorities.

Other decisions by federal authorities and federal commissions as well as cantonal courts or authorities are published in many different forms and ways: Some courts or boards of appeals have their own official collections. Others do not publish their cases officially and only submit major cases to law journals or publish summaries of their case law in their annual reports.

b) Electronic Version

Five to ten percent of the decisions of the Swiss Supreme Court are published officially by the court in its Collection of Cases, which is also available online back to 1975. Searching the courts database is rather cumbersome. The best results are achieved when using one of the indices. On Swisslex-Westlaw the official collection of the court goes back until 1954.

A selection of judicial decisions of the Federal Council and other federal commissions, agencies, and independent review panels are also available in the free online edition of the Collection of Decisions of Federal Authorities.

Many other federal as well as cantonal cases are collected by the commercial database Swisslex-Westlaw. A few cantonal supreme courts started to publish their decisions online. At the moment only one district court in Switzerland publishes its decisions on the Internet.

<Table of Contents>

II. Law Journals

Law journals are normally published by commercial publishers or legal associations but not by law schools. Most of the journals (except the ones published by Stämpfli Verlag AG) are available either online or by the commercial database Swisslex-Westlaw. Please note that cantonal case law is often published also in law journals.

Among the law journals that publish articles in English are the Swiss Review of Business Law and Swiss Review of International and European Law.

A list of all available Swiss and foreign (law and other) journals in Swiss libraries can be found at http://www.snl.ch/rpvz/english/.

<Table of Contents>

III. Parliaments

The Federal Assembly has its own website, which is a good source of information. The minutes of both chambers are publishes in the Official Bulletin and are also available online. While in season, the deliberations are broadcasted live on the Internet.

Each canton has its own parliament. For further information please refer to the Register of Helvetic Administration and Public Services Online.

<Table of Contents>

IV. Executives

Information on the Swiss federal government can be found at http://www.admin.ch/ch/index.en.html. Each of the seven federal departments has its own website. Furthermore, almost all of the federal agencies and commissions (e.g. the Swiss Federal Banking Commission or the Competition Commission) are online. Typically made available are text of reports, press releases, issue papers, drafts of statutes and regulations as well as general information.

Each canton has its own executive. For further information please refer to the Register of Helvetic Administration and Public Services Online.

<Table of Contents>

V. The Legal Profession

1. Bar Associations

Each canton has its own bar association. In addition, there is also a Swiss Bar Association. Many of the rules of professional conduct have been harmonized just recently by a new federal statute on the free movement of lawyers.

2. Law Firms

Typical Swiss law firms are quite small and consist only of a handful of lawyers. But in the past few years a clear trend towards bigger and Swiss-wide operating law firms can be observed.

3. Law Societies

In Switzerland quite a lot of law societies exist, both on the federal and cantonal levels.

<Table of Contents>

VI. Libraries

The catalogs of the most important law libraries are available online.

<Table of Contents>

VII. Legal Publishers and Bookstores

The major Swiss Publishers are:

Most of them accept online orders or orders by e-mail.

<Table of Contents>

VIII. Electronic Research Means

1. Legal Databases

The major legal database is Swisslex-Westlaw. It contains federal as well as cantonal case law and legislation. Furthermore, many law journals and even some law books are available. What makes this database unique is its very comprehensive thesaurus that automatically translates the search terms into the other official languages.

Another online database is Assistalex which contains major case law concerning tort law, insurance law, criminal law as well as labor and tenant law.

The Federal Commercial Registry contains some 320,000 active and expunged Swiss business names and names of associations and foundations. In addition, approx. 40,000 branch offices of Swiss and foreign companies are included.

There are also some CD-ROMs dealing with Swiss law.

2. Current Legal News

There are almost no legal news in English. Summaries of the recent case law of the Federal Supreme Court and the debates of the Federal Assembly are published (also online) in German in one of the major Swiss newspapers, the Neue Zürcher Zeitung (NZZ). The reports of the leading Swiss News Agency SDA/ATS concerning recent judicial cases can also be found online. The Federal Council and the Federal Assembly both publish their own press releases online on a daily basis. Especially worth mentioning are the press releases in English of the Federal Office of Justice and of the Federal Office for Communications.

In addition, several law and accounting firms publish their own books and newsletters containing brief commentary on Swiss legal happenings (see e.g. http://www.nkf.ch/e/publications2.htm or http://www.lenzstaehelin.com/pages/publications_form.htm).

General news in English about Switzerland are published electronically by Swissinfo and the English Window of NZZ Online.

3. Discussion Lists

The principal discussion list for Swiss lawyers is the Swisslawlist which is open only to lawyers. Many legal problems can be solved by posting a question to the list.

4. Link Lists

There are a great number of lists that provide a detailed overview of all the available legal materials online. These are all listed on my own list at http://www.cx.unibe.ch/civpro/schweiz.html#S06.

The only list fully available in English is “Swiss Taxation“, a free information service on Swiss tax law.

<Table of Contents>

C. Standard Swiss Texts – A Small Bibliography

Lawyers normally start their research by looking at commentaries or standard textbooks on a specific subject. The use of legal encyclopedias is almost unknown. Please note that most of the leading books are published only in German or French. The following is a selection of available legal texts in English. Some of them can be downloaded from the Internet. Also included are some references to English translations of the most important Federal Statutes.

Only very few federal statutes are available online. Basic legislative texts concerning the supervision of banking and financial markets In Switzerland can be found at http://www.kpmg.ch/library/ebk/law_index.htm. Legal texts dealing with provisions applicable to public takeover offers can be downloaded from the website of the Swiss Takeover Board at http://www.uebernahme.ch/texts/fr_texts.html. The most important statutes dealing with cartels, mergers and concentration of undertakings are available at http://www.wettbewerbskommission.ch/site/e/gesetze.html. Basic legal documents concerning telecommunications law are offered by the Federal Office for Communications at http://www.bakom.ch/eng/subpage/?category_73.html.

Essential Swiss business laws (including the Code of Obligations and the Civil Code) have been translated by the Swiss-American Chamber of Commerce and can be ordered online at http://www.amcham.ch/publicat/Swiss%20Laws&Regulations.htm.

Swiss statutes dealing with intellectual property can be found in English in a database operated by WIPO called Collection of Laws for Electronic Access (CLEA) at http://clea.wipo.int.

For a general introduction to the Swiss legal system see Dessemontet François/Ansay Tugrul, Introduction to Swiss Law, 2nd ed., Zürich (Schulthess Polygraphischer Verlag) 1995.

I. Anti-Trust Law

<Table of Contents>

II. Arbitration Law

  • Berti Stephen V. (Ed.), International Arbitration in Switzerland: An Introduction to and a Commentary on Articles 176-194 of the Swiss Private International Law Statute, Basel (Helbing and Lichtenhahn) 2000.

  • Blessing Marc, Introduction to Arbitration: Swiss and International Perspective, Basel (Helbing and Lichtenhahn) 1999.

  • Bucher Andreas/Tschanz Pierre-Yves, Private International Law and Arbitration, Switzerland: Basic Documents, Basel (Helbing and Lichtenhahn) 1996.

<Table of Contents>

III. Bankruptcy Law

<Table of Contents>

IV. Business Law

<Table of Contents>

V. Civil Code

  • Wyler Siegfried/Wyler Barbara, The Swiss Civil Code, Modifications of the Code 1.1.1988 – 1.1.2000, Zürich (ReMaK-Verlag) 2000.

  • Wyler Siegfried/Wyler Barbara, The Swiss Civil Code, Completely Reset, Revised and Up-dated Edition with Notes, Vocabularies, Index and a Synopsis of all Changes of the Law Since 1912, Zürich (ReMaK-Verlag) 1987.

<Table of Contents>

VI. Company Law

  • Arpagaus Reto, Business Associations under Swiss Law, An Overview of the Most Important Types and a Comparison with U.S. Business Associations.

  • Becchio Bruno et al., Swiss Company Law, Translation of the Official Text of the Portions of the Swiss Civil Code and Code of Obligations Relating to Companies and other Business Associations, 2nd ed., The Hague (Kluwer Law International) 1996.

  • Bösch René/Würsch Daniel A., Swiss corporation law: English Translation of the Provisions of the Amended Swiss Code of Obligations Governing Corporations: With an Introduction to Swiss Corporation Law, Zürich (Schulthess Polygraphischer Verlag) 1992.

<Table of Contents>

VII. Conflict of laws

  • Karrer Pierre A. et al., Switzerland’s Private International Law: Private International Law Statute, Lugano Convention and Related Legislation, 2nd ed., Zürich (Schulthess Polygraphischer Verlag) 1994.

<Table of Contents>

VIII. Constitutional Law

<Table of Contents>

IX. Environmental Law

  • Petitpierre-Sauvain Anne, Environmental Law in Switzerland, The Hague (Kluwer Law International) 1999.

<Table of Contents>

X. Intellectual Property Law

<Table of Contents>

XI. Procedural Law

<Table of Contents>

XII. Property Law

  • Hänseler Peter/Hochstrasser Daniel, Real Estate in Switzerland, Swiss Commercial Law Series, Vol. 5, Basel (Helbing und Lichtenhahn) 1996.

<Table of Contents>

XIII. Securities Law

  • Christoph Brunner, Liability of Publicly Held Corporations for a Violation of a Duty to Disclose, in Particular the “Ad Hoc Publicity”, Bern (Stämpfli Verlag AG) 1998.

  • Daeniker, Daniel, Swiss Securities Regulation: An Introduction to the Regulation of the Swiss Financial Market: With a Translation of the Stock Exchange Act of 1995 (SESTA) and Implementing Ordinances, Zürich (Schulthess Polygraphischer Verlag) 1998.

<Table of Contents>

XIV. Tax Law

<Table of Contents>

D. Various Other Information

<Table of Contents>

Posted in: Features, International Legal Research