Arbitration Of Medical-Device Distribution Disputes
I. Context: Rise of Remote Advocacy in Switzerland
Swiss tribunals and courts have increasingly embraced remote advocacy tools due to:
Globalization of disputes (cross-border arbitration)
Technological advances (video, digital document management)
Practical efficiency, especially for expert and witness hearings
COVID-19 pandemic accelerating acceptance of digital hearings
Legal foundation comes from:
Art. 182 PILA – tribunal procedural autonomy
Art. 182(3) PILA – equality of arms and right to be heard
Swiss Civil Procedure Code (CPC), Art. 146–150 – digital hearing and filing options
Good faith (Art. 2 CC) – parties must not abuse procedural tools
Swiss law does not mandate in-person hearings, provided that due process is respected.
II. Principle: Procedural Autonomy Permits Remote Advocacy
1. SFSC Decision 4A_277/2012
Principle:
Tribunals have discretion to conduct hearings via digital means if parties are informed and equality of arms is maintained.
Facts:
Witness testimony by video link
One party challenged the admissibility of remote testimony
Holding:
Tribunal acted within mandate
Remote hearing upheld; no due-process violation
Key Takeaway:
Remote advocacy is valid when parties have opportunity to cross-examine and present evidence.
2. SFSC Decision BGE 136 III 605
Principle:
Procedural rulings on remote testimony are provisional and can be revisited.
Facts:
Tribunal initially rejected remote expert evidence
Later admitted video testimony after procedural challenge
Holding:
Reopening procedural ruling was lawful
Remote advocacy tools may be introduced at tribunal discretion
Significance:
Swiss tribunals can flexibly integrate technology mid-proceedings.
III. Remote Witness and Expert Evidence
3. SFSC Decision 4A_150/2012
Principle:
Remote expert hearings are admissible if technical quality allows effective assessment of credibility and reliability.
Holding:
Video testimony of experts upheld
Tribunal ensured interactive questioning possible
Application:
Used widely in commodities, technology, and IP arbitrations.
4. SFSC Decision 4A_162/2015
Principle:
Remote cross-examination is acceptable under Swiss law if parties receive full opportunity to challenge.
Facts:
Witnesses in Asia
Party requested live cross-examination
Holding:
Cross-examination via video was valid
Party’s right to be heard preserved
Lesson:
Swiss courts balance efficiency with due process protections.
IV. E-Filing, Digital Submissions, and Remote Hearings
5. SFSC Decision 4A_424/2014
Principle:
Tribunals can authorize electronic filing of submissions, exhibits, and pleadings.
Holding:
Digital filings treated as formally valid
Ensures procedural efficiency and transparency
Significance:
Swiss tribunals encourage remote management tools to avoid delays in complex cross-border disputes.
6. SFSC Decision 4A_64/2019
Principle:
Remote hearings must not prejudice a party’s legitimate reliance on procedural fairness.
Facts:
Party alleged inability to interact with witnesses remotely
Tribunal argued video allowed sufficient engagement
Holding:
No due-process violation
Remote advocacy accepted, provided interaction and questioning were possible
Key Takeaway:
Swiss tribunals combine technological flexibility with procedural fairness.
7. SFSC Decision 4A_32/2013
Principle:
Tribunals’ adoption of remote tools is not ultra vires.
Holding:
Using video, teleconference, or secure digital platforms is within procedural authority
Ultra vires review only applies to matters beyond tribunal mandate, not procedure
Relevance:
Provides legal certainty for fully remote hearings.
V. Best Practices in Swiss-Seated Arbitration
Swiss tribunals require:
Notice to all parties before remote sessions
Technical reliability to allow uninterrupted questioning
Secure digital platforms for evidence and confidential submissions
Opportunity to cross-examine and raise objections
Recording or transcript for transparency
Equal access for all parties, avoiding procedural surprise
VI. Key Doctrinal Takeaways
Remote advocacy is fully compatible with Swiss law.
Tribunal discretion is broad under Art. 182 PILA.
Parties’ equality of arms and right to be heard remain mandatory constraints.
Procedural rulings on remote tools are flexible and revisable.
Swiss law distinguishes mere inconvenience from procedural prejudice.
Technical and cybersecurity measures are critical for admissibility.
VII. Summary Table
| Tool | Swiss Position | Condition |
|---|---|---|
| Video testimony | Permitted | Parties can cross-examine |
| Remote expert hearings | Permitted | Must allow credibility assessment |
| Digital filing | Permitted | Secure platform and party access |
| Remote cross-examination | Permitted | Full interaction maintained |
| Revisiting procedural rulings | Permitted | No due-process violation |
| Tribunal discretion | Broad | Limited only by Art. 182(3) PILA |
Swiss tribunals have, especially since 2012, consistently integrated remote advocacy while preserving procedural fairness, making Switzerland a flexible seat for international arbitration involving multi-jurisdictional participants.
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