Civil Procedure Law
Right to Refuse Cooperation
In June 2021, the Federal Council adopted a consultation draft to revise Switzerland’s Code of Civil Procedure (CCP), focusing on practical applicability and enforcement. One key issue of interest to in-house lawyers is the proposal to introduce rights for in-house legal services to refuse cooperation (analogous to attorney-client privilege).
The relevant article proposed (Art. 160a E-CCP) aims to reduce disadvantages for Swiss companies operating in jurisdictions where such privileges already exist (e.g., USA).
The VSUJ supports the original draft (Art. 160a E-CCP), which promotes compliance through protected early legal advice, and opposes the parliamentary revision (Art. 167a E-CCP), as it could create legal uncertainty and contradict international practice.
Beyond the above-mentioned areas, a key issue for in-house counsel is the introduction of the right to refuse cooperation for internal legal departments. This provision aims to eliminate procedural disadvantages faced by Swiss companies in foreign jurisdictions—such as the U.S.—that already recognize professional privilege for in-house counsel.
The core objective of this privilege is to promote internal compliance by allowing early and comprehensive legal advice to be protected from third-party access in legal disputes.
Proposed Article 160a E-CCP (Draft)
Article 160a – Exception for Internal Legal Services
1. No duty to cooperate shall exist for parties or third parties with respect to the activities of an internal legal department, provided that:
a. the relevant activity would be considered specific to the legal profession if carried out by an attorney; and
b. the legal department is headed by a person who holds a cantonal attorney license or meets the professional qualifications to practice law in their country of origin.
2. Documents resulting from communication with an internal legal department are equally protected under the exemption stipulated in Article 160 paragraph 1 letter
The Legal Affairs Committee of the Council of States has reviewed this provision and recognizes the need for in-house counsel to have a right to refuse cooperation. However, the committee has proposed an alternative wording (Art. 167a E-CCP), which requires that the opposing party must also be entitled to refuse cooperation in order for this privilege to apply.
This formulation introduces legal uncertainty, risks non-recognition abroad (potential “blocking statute”), and undermines the aim of promoting compliance within companies—especially since potential opposing parties are often unknown at the time of legal consultation.