Originally from: The Practice of International Litigation - 2nd Edition - Looseleaf
The Practice of International Litigation - 2nd Edition - Electronic
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Service of Process in Switzerland
Lawrence W. Newman and Michael Burrows
The constant expansion of foreign investment and trade in the United
States and the resulting increase in multinational litigation present one of
the more vexing problems for American litigators: serving notice of a
pending litigation on parties located in foreign countries. For the
inexperienced, complying with the requirements for service on a non-U.S.
party can be frustrating, time-consuming and expensive. This most basic of
requirements for the commencement of a lawsuit can lead to extensive—
and, for the plaintiff, sometimes disastrous—motion practice.
To most litigation lawyers, service on a U.S. party is a simple and
somewhat mechanical process; and, with the availability of service by mail,
this perception has been reinforced. But, as litigators involved in
international practice have known for some time, the same cannot be said
for extraterritorial service, as to which the procedure is far less mechanical
or simple.
Recognizing the difficulties posed by serving foreign parties, the drafters
of the Federal Rules of Civil Procedure and the Convention on the Service
Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
Matters (“The Hague Service Convention” or the “Convention”) have
each undertaken to construct a mechanism to permit international service
of process to stay abreast of modern business realities. However, as well
intended and encompassing as these two processes are, both are subject to
limitations. Thus, the Federal Rules of Civil Procedure are, in some cases,
limited in application to the extent they conflict with the laws of foreign nations, and
The Hague Service Convention applies only to signatories of that
instrument. Further complicating matters, service by mail, despite its
advantages, is not recognized under the laws of some foreign countries and
may occasionally provoke diplomatic protests. One such country is
Switzerland.
As early as 1961, Switzerland expressed its opposition to the use of
international mail to effectuate service of process on parties located within
its boundaries. Consequently, any such attempt to apprise a Swiss party of
a pending lawsuit is subject to a challenge to the sufficiency of such service
and to the risk that a judgment will be unenforceable in Switzerland. To
dispel some of the mystery associated with extraterritorial service, this
chapter reviews the procedure by which service of process can be properly
effectuated on a party located in Switzerland.
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
