IBA MEDIATION SUB-COMMITTEE ON THE UNCITRAL MODEL LAW ON

INTERNATIONAL COMMERCIAL CONCILIATION (“MLICC”)

As mentioned in the introduction letter, this questionnaire shall help to indicate how the
MLICC compares to existing mediation or conciliation practice in YOUR COUNTRY regarding
the key areas:

1. statute of limitations (Article 4 footnote 3 MLICC);

2. confidentiality, admissibility and privilege (Article 8, 9 and 10 MLICC);
3. enforcement of settlement agreement (Article 14 MLICC).

1. Statute of limitations

(a) In international commercial conciliation or mediation in your country how

easy or difficult is it to determine the applicable statute of limitations?

Preliminary remark:
At the moment, there is no Swiss statutory law on a federal level with regard to
national or international conciliation or mediation. Until now, among the 26
cantons, only Geneva has adopted a law on civil mediation which entered into force
on 1 January 2005.
There are, however, private institutions such as the Swiss Lawyers Association
(FSA/SAV) or the Swiss Chamber on Commercial Mediation (SCCM) which have
established guidelines and ethical codes for mediation.
At the moment, the Swiss Civil Procedure Law (SCP) is being unified and modified
on a federal level and is expected to become effective by 2010. The draft SCP
contains to some extent provisions on ADR: conciliation, mediation and arbitration.
Today, in matter of insurance, banking and travel contracts, conflicts may be
referred to designated ombudsmen offices. These private institutions, however, are
neither defined nor regulated by law.
Statute of limitation:
With regard to contract law, limitation periods are governed by the Swiss Code of
Obligation (art. 134 CO).
In general, these limitation periods are suspended by initiation of court
proceedings. Mediation implemented spontaneously by the parties will not suspend
the limitation period; therefore, parties usually agree preliminarily on a mutual time
extension and waive the right to rely on any time bar which may apply with regard
to a possible claim.

(b) What should the mediator and the parties be aware of with regard to the
relevant law and rules as to: (i) permitted shortening, (ii) tolling
(suspending), (iii) extending the applicable statute of limitations in
general, or, if relevant, with particular reference to international
commercial conciliation (including any special requirements or formalities
as to dates of commencement and ending with positive or negative results
of the process)?

As set out above (1.a), parties may agree preliminarily on a shorter statute of
limitation or any tolling or extending, but have to respect the principles of good
 faith, particularly with regard to parties in need of protection such as consumers,
employees, etc.

(c) Can the parties eliminate any statute of limitations (irrespective of the law
and rules as to the statute of limitations as such)?

No
Yes, please name how: (see remark)
by simple waiver (for example, can the parties make a written promise
not to plead the statute of limitations)
by other mean(s), please specify:

Parties have to be aware of procedural time limits which may not be eliminated or
amended (see para 1.d).

(d) Does your country make a distinction between a statute of limitations as

such and a condition precedent attaching to a right, which provides a
shorter time, without reference to the statute of limitations, in which to
commence an action?
Yes, in addition to the afore-mentioned statute of limitations, there exist special
time limits for certain types of civil claims, such as an action to contest a resolution
of a shareholders’ meeting or the annulement of a last will.
When these limits have elapsed, the claim is dismissed on the merits rather than on
procedural grounds. These time limits, other than the statute of limitations, cannot
be extended by an agreement between the parties.
In any event, further conditions precedent may apply, such as the duty to provide
explanations in an insurance claim, may have an effect on the parties’ position in
later court proceedings (e.g. the burden of proof).

2. Confidentiality, Admissibility & Privilege

(a) Are there any statutory or common law provisions of general application
that are sufficient to safeguard the desired degree of legal protection
against unwanted disclosure as expressed in MLICC Article 9, or is it
necessary to refer to some special legislation or rules of procedure?

No (see remarks)

Yes, please provide reference:

The Geneva civil procedure and law on organization of judiciary (GCP/GOJ) obliges
the mediator to keep secret all the facts he learned as a result of mediation process
and any action he took, participated in or witnessed. The parties may not reveal
anything that was said before the mediator.
In all the other cantons, however, the duty of confidentiality can be stated in a
preliminary agreement to the mediation. But, the enforceability of this duty by the
Court is not assured.
Please note that members of the Swiss Lawyers Association (FSA/SAV) or the Swiss
Chamber on Commercial Mediation (SCCM) are subject to the guidelines and ethical
codes of conduct for conventional mediation; these guidelines do state respective
confidentiality provisions.

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(b) Are there nevertheless statutory requirements or rules of court which
would oblige a party or mediator or witness to disclose confidential
information in certain situations with the result that MLICC Article 9 offers
only a relative protection?

No
Yes, please provide reference:
The mediator’s contractual duty of confidentiality may conflict with a statutory duty
to testify. There is no statutory provision expressly enabling mediators to refuse to
testify on the basis of a duty of confidentiality. The judge may in general excuse a
witness from testifying if (a) the witness exercises a profession which is subject to a
secrecy obligation under the Swiss Criminal Code or (b) if the witness is subject to a
particular relationship of trust and confidence.
This rule, however, only applies when other protective measures are not available
and when the interest of the witness in keeping the information confidential prevails
over the interest of the party seeking to put the confidential information into
evidence.
Mediators may be regarded as subject to a “particular relationship of trust and
confidence“, such that it might be possible for them to refrain from testifying.

(c) Does your country follow the rule in MLICC Article 8 as to the need for a
party to specify that information being given ex parte to a mediator is
confidential?

Yes
No, please provide reference:

See above (2.a, b).

(d) Is the very fact that a mediation has commenced or ended, with or without
a resolution, confidential per se or is an agreement necessary between
parties, mediator, and / or a service provider such as ICC or AAA?

Mediation per se confidential

Agreement necessary to ensure confidentiality

See above (2.a, b).

Neither of the above, please provide reference:

(e) To what extent may the parties agree upon consequences in:

the event of a breach of confidentiality

liquidated damages
contractual penalties

contempt proceedings

Others. Please provide reference

in anticipation of a disclosure

provide for an expedited injunction proceeding

the right to intervene in an action

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the posting of a bond

other(s), please specify:

(f) Do laws or rules of general application exist that satisfy MLICC Article 10
as to the admissibility or use of information obtained in conciliation
proceedings in arbitral, judicial or similar proceedings?

Yes

They include any specific “privileged” communications in the nature of or
conceptually similar to the attorney-client privilege
No, please provide reference:

See above (2.a, b).

Special law or regime is necessary. Please provide details, if any:

(g) In view of the answer to (10) above, what can a party, mediator, witness
or other relevant third party testify to or introduce in a later proceeding,
whether the conciliation was successful or unsuccessful?

There are no restrictions by Swiss statutory law in this regard.

(h) Is there any rule that arguments as to admissibility and / or privilege are
waived if a document or communication is relied on in litigation and does it
make any difference if such a reliance was made in the context of a prior
conciliation solely to facilitate a possible settlement?

Yes
No, please provide reference:

Under Swiss law, the concept of privilege is not known. Therefore, there is no
statutory rule in this regard. Documents and information once revealed in
mediation may be subject to only limited confidentiality in litigation.

(i) To what extent does the answer to (9) above as to a penalty or injunction
for a breach in respect of confidential information protected by MLICC
Article 8, apply to use or admission of the categories of information
protected by MLICC Article 10 in a court proceeding or an arbitration?

Such penalty agreed upon by the parties does not prevent the presentation and use
of such information in court proceedings or arbitration. But, such breach will trigger
the respective penalty.
Further, a party restricted by some kind of penalty when revealing documents or
information in litigation may try to claim the violation of its constitutional right to
assert a claim.

(j) To the extent not otherwise addressed above, if a settlement agreement is

made following an international conciliation, can a court or arbitrator or
subsequent mediator hear witnesses or receive documents which are
otherwise subject to a restriction arising out of the prior conciliation as
being non-admissible and / or confidential, and in particular in order to (i)

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 understand what the parties intended, (ii) implement the agreement, or
(iii) enforce the agreement.

See above (2.a, b).

(k) How would an “offer of settlement” be treated in the context of an

unsuccessful conciliation when a party obtains less in a litigation or
arbitration than it was offered by its adversary during the conciliation?

Such offer may not be regarded as binding since it was made in the context of
settlement negotiations.
Further, there are no consequences as to costs unless provided for in the mediation
agreement.

3. Enforcement of Settlement Agreement

(a) How are settlement agreements generally arrived at and enforced

following an international conciliation in your country?

by ordinary contract, or
by agreement, and / or

by some exceptional regime including specialised courts and procedures

Any other, please specify:

(b) In addition, are there special agreements, procedures or tactics which can
enhance recognition and enforcement, such as:

by bonds

letters of credit
security agreements

deeds

summary proceedings
incorporation in a judgment (provided that proceedings are pending)
as an arbitral award made with the consent of the parties
(provided that proceedings are pending)

Or, some but other sui generis system of expedited enforcement, please specify:

(c) Are there any defences ordinarily or exceptionally available against

enforcement of post-conciliation settlement agreements?

The settlement agreement is an ordinary contractual agreement between the

parties. Therefore, it may be subject to any contractual argument such as fraud and
wilful deception.

(d) What law or rules apply in the enforcement of a settlement agreement as

to costs, interest and attorney fees in the enforcement of a settlement
agreement?

In order to enforce the agreement, parties may file a claim for performance. The
respective cantonal procedural law and rulings will apply as to costs, interest and
attorney fees.

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Sent by:

Name & Title: Georg von Segesser, Partner

Sandra Lendenmann, Associate

Law Firm/Company/Affiliation: Schellenberg Wittmer

Mailing Address & Postal Code: Löwenstrasse 19

Postfach 1876
8021 Zürich

Country: Switzerland

Telephone: +41 (0)44 215 93 71

E-Mail: georg.vonsegesser@swlegal.ch
sandra.lendenmann@swlegal.ch

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