ICLG The International Comparative Legal Guide to:

ICLG The International Comparative Legal Guide to: Litigation & Dispute Resolution 2015 8th Edition A practical cross-border insight into litigation and dispute resolution work Published by Global Legal Group, in association with CDR, with contributions from: A.G. Erotocritou LLC Achour Law Firm Advokatfirman Vinge Allen & Overy LLP Attorneys at Law Borenius Ltd. Bär & Karrer AG Blake, Cassels & Graydon LLP Boga & Associates BON, Advocates Brian Kahn Inc. Attorneys CAKMAKOVA Advocates Casahierro Abogados Clayton Utz Dechert Kazakhstan Limited Dentons DLA Piper LLP Drinker Biddle & Reath LLP Gleiss Lutz Gün + Partners International Advocate Legal Services Iwata Godo King & Wood Mallesons LLP Kruk & Partners Law Firm Latournerie Wolfrom & Associés Lennox Paton M. & M. Bomchil Motieka & Audzevičius Oblin Melichar Oliveira Ramos, Maia e Advogados Associados Ovalle Ugarte & Letelier Abogados Pittier, Almandoz y Eliaz, S.C. Portilla, Ruy-Diaz y Aguilar, S.C. Quinn Emanuel Urquhart & Sullivan, LLP Rogério Alves & Associados Sociedade de Advogados, R.L. Sam Okudzeto & Associates Shipman & Goodwin LLP Sysouev, Bondar, Khrapoutski SBH Wolff Gstöhl Bruckschweiger Advokaturbüro Zamfirescu Racoţi & Partners Attorneys at Law Zavadetskyi Advocates Bureau

The International Comparative Legal Guide to: Litigation & Dispute Resolution 2015 General Chapter: 1 Freezing Injunctions in Support of Foreign Proceedings & Arbitration Greg Lascelles & David Thomas, King & Wood Mallesons LLP 1 Contributing Editor Greg Lascelles, King & Wood Mallesons LLP Head of Business Development Dror Levy Sales Director Florjan Osmani Commercial Director Antony Dine Account Directors Oliver Smith, Rory Smith Senior Account Manager Maria Lopez Sales Support Manager Toni Hayward Editor Gemma Bridge Senior Editor Suzie Levy Group Consulting Editor Alan Falach Group Publisher Richard Firth Published by Global Legal Group Ltd. 59 Tanner Street London SE1 3PL, UK Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 Email: info@glgroup.co.uk URL: www.glgroup.co.uk GLG Cover Design F&F Studio Design GLG Cover Image Source istockphoto Printed by Information Press Ltd. March 2015 Copyright 2015 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-910083-34-5 ISSN 1755-1889 Strategic Partners Country Question and Answer Chapters: 2 Albania Boga & Associates: Gerhard Velaj & Elona Hoxhaj 5 3 Argentina M. & M. Bomchil: María Inés Corrá 13 4 Australia Clayton Utz: Colin Loveday & Scott Grahame 21 5 Austria Oblin Melichar: Dr. Klaus Oblin 30 6 Belarus Sysouev, Bondar, Khrapoutski SBH: Timour Sysouev & Alexandre Khrapoutski 38 7 Belgium Allen & Overy LLP: Koen Van den Broeck & Thales Mertens 49 8 Brazil Oliveira Ramos, Maia e Advogados Associados: Luiz Gustavo de Oliveira Ramos 55 9 British Virgin Islands Lennox Paton: Scott Cruickshank & David Harby 61 10 Canada Blake, Cassels & Graydon LLP: Ryder Gilliland 74 11 Chile Ovalle Ugarte & Letelier Abogados: Esteban Ovalle Andrade & Gianfranco Gazzana Berenguer 82 12 Cyprus A.G. Erotocritou LLC: Andreas Erotocritou & Antreas Koualis 90 13 England & Wales King & Wood Mallesons LLP: Greg Lascelles & David Thomas 99 14 Finland Attorneys at Law Borenius Ltd.: Kristiina Liljedahl & Niki J. Welling 110 15 France Latournerie Wolfrom & Associés: Julien de Michele & Chantal Cordier-Vasseur 117 16 Germany Gleiss Lutz: Michael Christ & Claudia Krapfl 128 17 Ghana Sam Okudzeto & Associates: Nene Amegatcher & Esine Okudzeto 136 18 Japan Iwata Godo: Atsushi Izumi & Yuya Masamoto 143 19 Kazakhstan Dechert Kazakhstan Limited: Sergei Vataev & Roman Nurpeissov 150 20 Wolff Gstöhl Bruckschweiger Advokaturbüro: Christoph Bruckschweiger 158 21 Lithuania Motieka & Audzevičius: Ramūnas Audzevičius & Mantas Juozaitis 165 22 Macedonia CAKMAKOVA Advocates: Maja Jakimovska 173 23 Malaysia BON, Advocates: Edmund Bon Tai Soon & New Sin Yew 181 24 Mexico Portilla, Ruy-Diaz y Aguilar, S.C.: Carlos Fernando Portilla Robertson & Enrique Valdespino Pastrana 188 25 Peru Casahierro Abogados: Javier Lozada Paz 196 26 Poland Kruk & Partners Law Firm: Aleksandra Matwiejko-Demusiak & Jarosław Kruk 204 27 Portugal Rogério Alves & Associados Sociedade de Advogados, R.L.: Rogério Alves 214 28 Romania Zamfirescu Racoţi & Partners Attorneys at Law: Cosmin Vasile & Alina Tugearu 222 29 Russia Quinn Emanuel Urquhart & Sullivan, LLP: Ivan Marisin & Vasily Kuznetsov 230 30 South Africa Brian Kahn Inc. Attorneys: Brian Kahn & Nicqui Galaktiou 237 31 Spain Dentons: Julio Parrilla & Arancha Barandiarán 244 32 Sweden Advokatfirman Vinge: Krister Azelius & Lina Bergqvist 252 33 Switzerland Bär & Karrer AG: Matthew Reiter & Simone Stebler 259 34 Tunisia Achour Law Firm: Achour Abdelmonem 267 35 Turkey Gün + Partners: Beril Yayla Sapan & Asena Aytuğ Keser 275 Continued Overleaf Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. www.iclg.co.uk

The International Comparative Legal Guide to: Litigation & Dispute Resolution 2015 Country Question and Answer Chapters: 36 Ukraine Zavadetskyi Advocates Bureau: Oleksandr Zavadetskyi & Dmytro Chekavskyi 282 37 United Arab Emirates International Advocate Legal Services: Diana Hamadé Al Ghurair 291 38 USA California DLA Piper LLP: Cedric Chao & Kathleen Kizer 299 39 USA Connecticut Shipman & Goodwin LLP: Frederick S. Gold & Diane C. Polletta 310 40 USA Illinois Drinker Biddle & Reath LLP: Bennett W. Lasko & Alexius Cruz O Malley 320 41 USA New Jersey Drinker Biddle & Reath LLP: Andrew B. Joseph & Andrew C. Egan 327 42 USA Pennsylvania Drinker Biddle & Reath LLP: Michael W. McTigue Jr. & Jennifer B. Dempsey 334 43 Venezuela Pittier, Almandoz y Eliaz, S.C.: Alfredo Almandoz Monterola & Juan Manuel Silva Zapata 341 Editorial Welcome to the eighth edition of The International Comparative Legal Guide to: Litigation & Dispute Resolution. This guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of the laws and regulations of litigation and dispute resolution. It is divided into two main sections: One general chapter titled Freezing Injunctions in Support of Foreign Proceedings & Arbitration. Country question and answer chapters. These provide a broad overview of common issues in litigation and dispute resolution in 42 jurisdictions, with the USA being sub-divided into five separate state-specific chapters. All chapters are written by leading litigation and dispute resolution lawyers and industry specialists, and we are extremely grateful for their excellent contributions. Special thanks are reserved for the contributing editor Greg Lascelles of King & Wood Mallesons LLP, for his invaluable assistance. Global Legal Group hopes that you find this guide practical and interesting. The International Comparative Legal Guide series is also available online at www.iclg.co.uk. Alan Falach LL.M. Group Consulting Editor Global Legal Group Alan.Falach@glgroup.co.uk

Chapter 20 Wolff Gstöhl Bruckschweiger Advokaturbüro Christoph Bruckschweiger I. LITIGATION 1 Preliminaries 1.1 What type of legal system has got? Are there any rules that govern civil procedure in? is a civil law country. The laws are codified in several acts. The relevant acts for litigation are the following: the Code of Civil Procedure ( Zivilprozessordnung ; hereinafter: LCCP), which governs contentious matters in front of civil courts; the Jurisdiction Act ( Jurisdiktionsnorm ; hereinafter: LJA), which governs the jurisdiction of courts; and the Enforcement Code ( Exekutionsordnung ; hereinafter: LEC), which governs the enforcement of judgments as well as of arbitral awards and contains provisions regarding preliminary injunctions. In addition, non-contentious procedural rules are contained in the Code of Non Contentious Matters ( Ausserstreitgesetz ; hereinafter: LCNM) for certain civil matters in front of civil courts. has concluded a treaty with Switzerland on the recognition and enforcement of judgments and arbitral awards in civil matters. A similar treaty exists with Austria. is also part of the Convention on Enforcement of Judgments regarding maintenance obligations towards children and the Convention on Recognition and Enforcement of foreign arbitral awards (New York Convention). is not a party to the Lugano/Brussels Conventions. 1.2 How is the civil court system in structured? What are the various levels of appeal and are there any specialist courts? On the first level, civil proceedings are initiated before the Princely Court of Justice ( Fürstliches Landgericht ; hereinafter: PCJ). The PCJ is competent for all civil matters. There are no specialist courts. The decision of the PCJ may be appealed to the Princely Court of Appeals ( Fürstliches Obergericht ) on points of facts and law. The decision of the Court of Appeals can be appealed to the Princely Supreme Court ( Fürstlicher Oberster Gerichtshof ) on points of law only. 1.3 What are the main stages in civil proceedings in? What is their underlying timeframe? The statement of claim ( Klage ) is filed with the PCJ and passed by the court on to the defendant. In the case of a foreign claimant, the court fixes a first hearing, which exclusively serves to determine the amount to be provided by the claimant in order to secure the defendant s legal costs. This is not the case for a domestic claimant. Once the security has been lodged with the court, the proceeding starts with the court s order to file an answer to the complaint. The length of the proceedings in the first instance depend entirely on the number of witnesses to be heard and whether they appear before the PCJ or need to be heard via letters rogatory abroad. Under normal circumstances a judgment of the PCJ should be available within one year after the filing of the complaint. To acquire a final judgment, which normally requires three instances, it might take up to three years. 1.4 What is s local judiciary s approach to exclusive jurisdiction clauses? Parties who have no link to may agree in writing to submit to the jurisdiction of the PCJ. Normally lawsuits are filed based on the rules of competence contained in the LJA. 1.5 What are the costs of civil court proceedings in? Who bears these costs? Are there any rules on costs budgeting? Legal costs comprise court fees and if necessary fees for experts, interpreters and witnesses. The court fees are governed by the Court Fees Act ( Gerichtsgebührengesetz ). Lawyers fees are reimbursed according to the Lawyers Fees Act ( Rechtsanwaltstarifgesetz ). The court states who has to bear the costs or the proportion in which the costs of the proceedings are to be shared. The court fees and lawyers fees are calculated on the basis of the amount in dispute. As regards fee arrangements between lawyers and clients, hourly fees are quite common. The hourly rates usually range between CHF 400.00 and CHF 600.00. There are no rules on costs budgeting. 158 www.iclg.co.uk iclg to: LITIGATION & DISPUTE RESOLUTION 2015

1.6 Are there any particular rules about funding litigation in? Are contingency fee/conditional fee arrangements permissible? What are the rules pertaining to security for costs? Lawyers fees are subject to the Lawyers Fees Act, and in the decision the court only awards the amount based on the Lawyers Fees Act as part of the court fees. Apart hourly fee agreements are usual. Lump sum fees are not prohibited as is the case for success fees. Contingency fee agreements are not allowed if the attorney shall be remunerated with a share of the amount in dispute. If parties who cannot afford to pay costs and fees prove that their financial means are insufficient, legal aid ( Verfahrenshilfe ) is granted to them. Consequently, they are exempt from paying court fees and provided with a lawyer free of charge. This person is legally obliged to pay back the legal aid if she/he is able to do so without an impact on the necessary maintenance within three years after having been granted the legal aid. As stated above, foreign claimants have upon a defendant s request to deposit security for legal costs, unless international agreements provide otherwise. This does not apply if the cost decision is enforceable in the claimant s home jurisdiction or if the claimant disposes of sufficient immovable assets in a country in which it can be enforced (this is either Austria or Switzerland). Furthermore, there are certain civil law matters which exclude such an obligation (e.g. matrimony disputes). 1.7 Are there any constraints to assigning a claim or cause of action in? Is it permissible for a non-party to litigation proceedings to finance those proceedings? There are no rules in place which would prohibit third party financing of a lawsuit. 2 Before Commencing Proceedings 2.1 Is there any particular formality with which you must comply before you initiate proceedings? Except for some special proceedings, a hearing at the mediation office in each municipality is required before a claim may be filed. 2.2 What limitation periods apply to different classes of claim for the bringing of proceedings before your civil courts? How are they calculated? Are time limits treated as a substantive or procedural law issue? The substantive law governs the limitation periods. knows an absolute (long) limitation period of 30 years and a short limitation period of three years (e.g. for damage claims). The absolute limitation period always applies whenever other provisions do not apply otherwise. There is a special limitation period of five years for certain claims. The statute of limitation generally commences when a right could have been first exercised. If a claim is statute-barred, it is not enforceable anymore. The Civil Code contains a special absolute limitation period for damage claims in connection with financial services. The period expires 10 years after the service was rendered. The law explicitly states that the court has no obligation to take the statute of limitation into consideration unless a party has explicitly argued so. 3 Commencing Proceedings 3.1 How are civil proceedings commenced (issued and served) in? What various means of service are there? What is the deemed date of service? How is service effected outside? Is there a preferred method of service of foreign proceedings in? The proceedings are initiated by the submission of the statement of claim ( Klage ) with the court. Upon receipt by the court, the claim is officially submitted. The court then sends the claim, together with a summons for the first court hearing, to the defendant at the address provided by the claimant. The date of service is the date on which the defendant actually receives the claim and summons or has the possibility to fetch it from the post office in case of consignation. The service of a statement of claim abroad is usually done via letters rogatory. 3.2 Are any pre-action interim remedies available in? How do you apply for them? What are the main criteria for obtaining these? law does not provide for rules of pre-trial discovery. Prior to filing a statement of claim, the claimant may ask the court for interim relief through various measures such as the seizure of assets, order to abstain from certain actions, etc. These measures are usually granted in case a claim whose realisation is endangered by the defendant s actions can be shown to the court. 3.3 What are the main elements of the claimant s pleadings? The statement of claim needs to comprise a specific claim, to state the facts which build the basis of the claim and to declare the supporting evidence. 3.4 Can the pleadings be amended? If so, are there any restrictions? The pleadings can be amended within the framework of the relief sought. An amendment of the relief sought is only possible under specific circumstances. A restriction lies in the rule that facts have to be included in the pleadings once they are known to the party. It is not admissible to wait with an amendment to the pleadings for tactical reasons. The court may reject those pleadings as dilatory. As regards the statement of claim, the claimant may amend the statement of the claim as long as it has not been served on the other party. After service, the claimant can only amend the claim with the consent of the other party. However, the court of first instance can grant an amendment even without the other party s consent if the amendment does not result in a major restriction or delay of the proceeding. iclg to: LITIGATION & DISPUTE RESOLUTION 2015 www.iclg.co.uk 159

4 Defending a Claim 4.1 What are the main elements of a statement of defence? Can the defendant bring counterclaims/ claim or defence of set-off? The term statement of defence is not defined in the LCCP, but it nonetheless exists in practice. Thus, a statement of defence needs to present the facts, provide the court with the evidence and contain a specific request (mainly to dismiss the claim). The defendant can also raise a counterclaim ( Widerklage ) or claim a set-off ( Aufrechnungseinrede or Kompensation ). 4.2 What is the time limit within which the statement of defence has to be served? The law does not provide for a deadline but if no statement of defence is filed, the court will fix a hearing until which at the latest a statement of defence has to be filed or stated orally to the court. Otherwise the defendant is likely to lose the lawsuit. The LCCP does not know the possibility to apply for a default judgment in the case no statement of defence is filed. 4.3 Is there a mechanism in your civil justice system whereby a defendant can pass on or share liability by bringing an action against a third party? The LCCP does not know such a mechanism. In a scenario where a defendant thinks that a third party is ultimately liable for the claim brought against it, the defendant can apply to court that the third party shall be informed about the lawsuit and that it is invited to join the suit on the defendant s side ( Streitverkündung ). The rationale behind this instrument is that in the case the defendant loses and takes redress on the third party, the latter is prevented from stating that the defendant did not use all efforts to win the original lawsuit and that the judgment is incorrect. 4.4 What happens if the defendant does not defend the claim? If the claim remains unanswered by the defendant, but the defendant appears at all court hearings, it is highly likely that it will lose the lawsuit. 4.5 Can the defendant dispute the court s jurisdiction? The first formal hearing serves (amongst others) to discuss the plea on incompetence. Thus, the defendant can dispute the court s jurisdiction but has to do so at the first hearing or with his statement of defence. 5 Joinder & Consolidation 5.1 Is there a mechanism in your civil justice system whereby a third party can be joined into ongoing proceedings in appropriate circumstances? If so, what are those circumstances? Yes, third parties may join an on-going proceeding if they have a legal interest that one party wins the case. The circumstances are described in question 4.3 above. 5.2 Does your civil justice system allow for the consolidation of two sets of proceedings in appropriate circumstances? If so, what are those circumstances? Yes, it is possible to consolidate two or more proceedings involving the same parties in order to save time and costs. 5.3 Do you have split trials/bifurcation of proceedings? Yes, the courts can split proceedings and hear claims separately which have been raised in one statement of claim. Likewise, counterclaims may be heard in a split trial. 6 Duties & Powers of the Courts 6.1 Is there any particular case allocation system before the civil courts in? How are cases allocated? The courts in all instances allocate the cases in accordance with the principles stated in the law on court s organisation ( Gerichtsorganisationsgesetz ). At the PCJ 10 judges sit over civil matters. 6.2 Do the courts in have any particular case management powers? What interim applications can the parties make? What are the cost consequences? The judge has the power to control the proceeding and thus opens, gives specific instructions to the parties and closes the lawsuit. He is in charge of the time schedule, has the power to order the parties to submit briefs and decides about the schedule concerning the production of evidence. If needed, he also nominates experts. Parties may file motions concerning e.g. time extensions of hearings, the interrogation of a witness or the stay of proceedings. Usually such motions do not have cost consequences on the parties. 6.3 What sanctions are the courts in empowered to impose on a party that disobeys the court s orders or directions? The judge is responsible for maintaining order during hearings. Persons who disturb a hearing may be warned. If the disturbance is repeated, the judge has the power to exclude this person from the hearing. If the person is a party, a default judgment could be the consequence of the exclusion. If someone insults e.g. a party or a witness, he/she can be punished with a fine. If a lawyer violates the proceeding or insults someone during the hearing, he can either be excluded or punished with a fine. If he repeats the disobedience or opposes the court s order, the party has to name another representative either during the hearing or after the hearing has been extended. If a witness fails to show at a hearing a fine is imposed. If a witness fails to testify at all without a valid excuse, he is punished with an administrative penalty. A witness can also be taken under oath. 160 www.iclg.co.uk iclg to: LITIGATION & DISPUTE RESOLUTION 2015

6.4 Do the courts in have the power to strike out part of a statement of case or dismiss a case entirely? If so, in what circumstances? No, as a general rule the courts have to decide over all arguments in a properly filed claim. 6.5 Can the civil courts in enter summary judgment? Upon the request of a party, a default judgment is rendered if the other party fails to show at the first hearing. If the claim is about an order for payment, the claimant may also ask the court to issue a payment order. If the defendant does not file an objection to this order within the time limit, the claimant receives an enforceable title and can proceed to the enforcement stage. If, on the other hand, the defendant replies with an objection within time, the regular litigation takes place. law provides for rules which may facilitate the execution of certain claims. If a monetary claim is based on a public document in which the defendant recognises his/her debt, it can be filed as a motion for summary judgment ( Rechtsöffungsverfahren ). 6.6 Do the courts in have any powers to discontinue or stay the proceedings? If so, in what circumstances? A proceeding is stayed if both parties agree and accordingly inform the court or if neither party appears at a hearing. A proceeding is discontinued either by law, e.g. if a party becomes insolvent or by court order based on various reasons the judge can consider as appropriate. 7 Disclosure the disclosure violates any state-approved obligation of secrecy of the party from which it is not released or infringes a business secret; or for any other reasons similar to the above. The LCCP also provides for the possibility to require a third party to disclose documents (under specific) circumstances (see question 7.3). The handover of a mutual document can also be pursed in a specific lawsuit. Pre-action disclosure is not provided for in the LCCP. 7.2 What are the rules on privilege in civil proceedings in? Based on the confidentiality rules, an attorney is not obliged to produce documents and facts which he learned due to his/her professional activity and which have to stay secret in the interest of his party. As a witness, an attorney has the right of refusal to give oral evidence if the information has been made available to him in his professional capacity. 7.3 What are the rules in with respect to disclosure by third parties? The court may order third parties to disclose if either the third party is under a legal obligation to hand over the document to the requesting party or if the document was drafted in the legal interest of the third party and the requesting party or it certifies a legal relationship between them, or it contains written statements that were made between them during the negotiation of a legal act. 7.4 What is the court s role in disclosure in civil proceedings in? Please see question 7.1 above. The judge is in charge of evidentiary proceedings. If the court finds that the motion to oblige the other party to disclose documents is justified, he will issue an according order. 7.1 What are the basic rules of disclosure in civil proceedings in? Is it possible to obtain disclosure pre-action? Are there any classes of documents that do not require disclosure? If a party maintains that a document that is relevant for the evidence is in the hands of the opponent, the court can, upon request, ask the opponent to disclose the document if: the opponent has expressly referred to the document in question as evidence; the opponent is under a legal obligation to hand it over; or the document was made in the legal interest of both parties or certifies a mutual legal relationship between the parties or contains written statements between the parties during their negotiations of a legal act (mutual document). The opponent can refuse to present the documents if: the disclosure concerns documents which affect family life; the opponent violates obligations of honour by the delivery of documents; the disclosure of documents leads to the disgrace of the party or of any other person or involves the risk of criminal prosecution; 7.5 Are there any restrictions on the use of documents obtained by disclosure in? No, there are no restrictions regarding documents obtained by disclosure. 8 Evidence 8.1 What are the basic rules of evidence in? Evidence is taken during the proceeding, not before. The parties need to produce the evidence supporting their allegations or where, according to the law, the burden of proof is on them. The judge is free to ponder the evidence and is only obliged to come to sound findings which correspond to life experience. The LCCP does not provide for strict rules of evidence. 8.2 What types of evidence are admissible, which ones are not? What about expert evidence in particular? The types of evidence are documents, party and witness testimony, expert testimony and judicial inspection. iclg to: LITIGATION & DISPUTE RESOLUTION 2015 www.iclg.co.uk 161

Due to the principle of immediacy, written witness statements are not admissible. However, expert testimonies are normally contained in written statements. Experts are usually summoned to the hearing to further explain and answer additional questions orally. 8.3 Are there any particular rules regarding the calling of witnesses of fact? The making of witness statements or depositions? Based on the principle of immediacy, there are no depositions and written witness statements are considered as mere documents. Witnesses are obliged to appear at the hearing and to testify. Restrictions exist as e.g. priests may refuse to testify. Specific rules are in place regarding the question when a witness may refuse to answer questions. Witnesses are first interrogated by the judge and later by parties legal counsel for additional questions. 8.4 Are there any particular rules regarding instructing expert witnesses, preparing expert reports and giving expert evidence in court? Does the expert owe his/her duties to the client or to the court? An expert witness assists the court and owes his/her duties to the court. Expert testimony is requested either by the parties or by the judge. The court also orders for the bearing of the expert s costs. The expert witness substitutes the court s lack of knowledge in the specific matter. If summoned, the expert needs to testify orally. Private expert reports have the status of a private document and are not considered to be expert reports according to the LCCP. However, practice has seen cases in which the opinion of a private expert was decisive. 8.5 What is the court s role in the parties provision of evidence in civil proceedings in? Due to the fact that the judge is responsible for the conduct of the litigation, he takes evidence which he considers relevant and orders the production of documents (see section 7 above). He appoints an expert witness if he considers it as necessary, e.g. if the allegations of one party make it necessary. 9 Judgments & Orders 9.1 What different types of judgments and orders are the civil courts in empowered to issue and in what circumstances? Court decisions on the merits about a claim are referred to as judgments ( Urteil ). Judgments are in writing. Decisions of a procedural nature which do not according to the LCCP need to be handed down as judgments are referred to as orders ( Beschluss ). In specific types of procedures, orders may have the same quality and content as judgments. 9.2 What powers do your local courts have to make rulings on damages/interests/costs of the litigation? The cost decision has to be included in the court s final decision (be it an order or a judgment). If a party fully prevails, it is reimbursed for the court fees and the lawyers fees, which are calculated on the basis of the Lawyers Fee Act. If the party only prevails partly, it is accordingly reimbursed to the extent it has prevailed. The decision on the cost can be challenged separately. The awarding of damages is not subject to the cost decision. The court may rule that even the prevailing party has to reimburse costs in case of dilatory behaviour. 9.3 How can a domestic/foreign judgment be recognised and enforced? If the losing party fails to satisfy the claim, the other party may apply to the court for enforcement of the judgment. Judgments become enforceable if they are final and binding. In this case, the judgment is also referred to as a title for the use of enforcement. The procedural conditions and rules for the enforcement of a judgment are governed by the LEC. has bilateral treaties on enforcement and recognition of judgments with Switzerland and Austria (see question 1.1 above). Apart from these, is not part of any other convention on enforcement and recognition of foreign judgments. If the foreign judgments derive from a country other than Switzerland and Austria and is not about maintenance, tutelage and child custody, there is another possible way of procedure by which foreign money judgments can get enforced in. The judgment creditor needs to file an application for payment order ( Zahlbefehl ) against the debtor resident in. If the debtor does not object the payment order within the given time by the court, the payment order becomes final and enforceable and execution can be initiated. If the debtor states an objection to the order, the judgment creditor has to file an application with the PCJ enclosing the foreign money judgment to initiate the so-called summary legal procedure ( Rechtsöffnungsverfahren ). After (usually) one court hearing a decision is rendered as to whether the objection against the payment order is being removed or the application is being dismissed. The debtor is obliged to put forward all evidence to sustain his application of dismissal of the claim. In the case that the court rules that the objection is being removed, the debtor has the possibility to file an action with the aim of eliminating the title again. The creditor can ask the court in such a case to secure any assets belonging to the debtor up to the sum of his claim until the final decision is rendered. If a disallowance suit is filed, the whole proceeding is re-opened and the witnesses need to be heard again. The court will render its judgment on the claim on the merits. The great advantage for the judgment creditor in such a disallowance suit is the fact that the debtor has to commence this procedure as claimant, thus, the burden of proof is on him and he therefore has to establish that the original claim is not justified. 9.4 What are the rules of appeal against a judgment of a civil court of? There is an appeal against the judgment of the PCJ ( Berufung ) and an appeal against the judgment of the Princely Court of Appeal ( Revision ). Procedural court orders ( Beschlüsse ; see question 9.1) can be challenged by recourse ( Rekurs ). Recourse proceedings are less formal but follow in general the principles of the appeal procedure. Within the limits of the LCCP, new allegations, facts and evidence may be introduced in the appeal and recourse procedure. 162 www.iclg.co.uk iclg to: LITIGATION & DISPUTE RESOLUTION 2015

Other remedies are an action for annulment or an action for the reopening of the proceedings. If the Princely Court of Appeal follows the appeal, it can either set aside the judgment, refer the case back to the Princely Court of First Instance or alter or confirm the judgment. II. ALTERNATIVE DISPUTE RESOLUTION 1 Preliminaries 1.1 What methods of alternative dispute resolution are available and frequently used in? Arbitration/Mediation/Expert Determination/Tribunals (or other specialist courts)/ombudsman? (Please provide a brief overview of each available method.) The main alternative dispute resolutions provided by law are arbitration and mediation. The arbitration law contained in the LCCP substantially reflects the UNCITRAL Model Law on International Commercial Arbitration and is based on the Austrian arbitration law. However, in comparison with the Austrian arbitration legislation, offers a more attractive legislation. The reasons to challenge the arbitral award before state courts are more limited and the procedure itself is faster as there is only the court of appeal as the one and only instance. In case of disputes between financial intermediaries and their clients, an ombudsman was installed in in April 2005. The ombudsman can try to broker an amicable solution. If no solution can be reached, the parties may seek the court s help to resolve the issue. 1.2 What are the laws or rules governing the different methods of alternative dispute resolution? The arbitration law is stipulated in Art. 594-635 LCCP. This provides a general framework for arbitration proceedings if the arbitral tribunal is domiciled in. Specific rules apply for consumers and employees. In addition, the Industry and Commerce Chamber and the Arbitration Association ( er Schiedsverein ; LIS) created the Rules, an autonomous framework which focuses on the characteristics of the arbitration procedure regarding company, foundation and trust law in. Mediation is governed by the Mediation Act ( Zivilrechts-Mediations-Gesetz ). The law does not limit the types of disputes that may be solved by mediation. 1.3 Are there any areas of law in that cannot use Arbitration/Mediation/Expert Determination/Tribunals/Ombudsman as a means of alternative dispute resolution? 1.4 Can local courts provide any assistance to parties that wish to invoke the available methods of alternative dispute resolution? For example, will a court pre or post the constitution of an arbitral tribunal issue interim or provisional measures of protection (i.e. holding orders pending the final outcome) in support of arbitration proceedings, will the court force parties to arbitrate when they have so agreed, or will the court order parties to mediate or seek expert determination? Is there anything that is particular to in this context? The LCCP stipulates that an arbitration clause does not exclude the court s competence to issue interim measures before and during arbitration proceedings. If a claim is filed with the PCJ and the underlying agreement contains an arbitration clause, the court will declare itself as not competent for the dispute if one party raises an according objection. A special feature of law is to be seen in the fact that, prior to initiating a lawsuit, it is in most cases obligatory to attend a conciliatory hearing before a mediation office ( Vermittlungsverfahren ). It is a requisite for 90% of the lawsuits to show that this hearing took place (and no settlement was reached). 1.5 How binding are the available methods of alternative dispute resolution in nature? For example, are there any rights of appeal from arbitration awards and expert determination decisions, are there any sanctions for refusing to mediate, and do settlement agreements reached at mediation need to be sanctioned by the court? Is there anything that is particular to in this context? A domestic arbitration award is equally enforceable in as is the case for a (final) court judgment. An arbitration award can only be challenged for major mistakes of the arbitration procedure and in case the award infringes public policy. A settlement reached via a mediation process has no legal force. However, if concluded before a conciliatory office it acquires the status of a court judgment. 2 Alternative Dispute Resolution Institutions 2.1 What are the major alternative dispute resolution institutions in? The only arbitration institution in is the Chamber of Industry and Commerce (LIHK), which offers to conduct an arbitration proceeding according to the newly issued Rules ( er Schiedsordnung ). All pecuniary claims can be submitted to arbitration. Family differences and disputes in connection with claims arising from apprenticeship contracts cannot be solved by arbitration. 3 Trends & Developments 3.1 Are there any trends in the use of the different alternative dispute resolution methods? On May 16 2012, the Chamber of Commerce and Industry issued its specific Rules of Arbitration to strengthen iclg to: LITIGATION & DISPUTE RESOLUTION 2015 www.iclg.co.uk 163

s appeal as a venue for international arbitration. These rules deal with similar topics to those of, for example, the International Chamber of Commerce in Paris, and will apply where: l) the parties have thus agreed; or 2) the rules are mentioned already in the respective arbitration clause of a contract or the articles of association of a company or foundation. The rules contain specific provisions for the determination of costs by an arbitral tribunal. According to Article 25 and following, the arbitral tribunal is entitled to determine not only the costs for legal representation and assistance of the parties, but also the fees that will apply to the tribunal. The latter must be determined in conformity with Appendix A of the rules (i.e., the schedule of the costs of arbitration). This provision aims to avoid higher costs being applied to an arbitral tribunal than those mentioned in the aforementioned schedule. Furthermore, the schedule contains arbitrator s fees. In general, such fees are lower than those applied in arbitration proceedings with three highly qualified arbitrators. The rules also govern confidentiality one of the reasons why parties usually choose arbitration proceedings and thereby avoid public court hearings. Article 29 of the rules explains explicitly that the parties, their representatives, experts, the arbitrators, any commissioner, the secretariat and auxiliary persons must keep confidential all awards and orders, as well as all materials submitted and facts made available by other participants in the framework of the arbitral proceedings. This provision also introduces penalties for violations of this rule. Under Article 29(7), a party, its representative, an expert, an arbitrator, any commissioner or any auxiliary persons that breaches the confidentiality obligation must pay a contractual penalty of CHF 50,000 to the injured parties. It is hoped that this fine will prevent participants from giving any information to third parties that are not entitled to receive it. All of the other rules can be viewed online at www.lis.li. Christoph Bruckschweiger Wolff Gstöhl Bruckschweiger Advokaturbüro Mitteldorf 1 9490 Vaduz Tel: +423 238 1030 Fax: +423 238 1031 Email: bruckschweiger@wgb-law.li URL: www.wgb-law.li Christoph Bruckschweiger, LL.M. Christoph Bruckschweiger is a partner of the firm of Wolff Gstöhl Bruckschweiger (WGB). He and the firm are constantly ranked in Band 1 in both Chambers Europe/Global and in other independent publications in the field of dispute resolution. Apart from this core competence (comprising arbitration as a growing field of activity), Christoph focuses mainly on trusts and foundations and private client matters as well as on international fraud and asset recovery cases. He and the other partners at WGB mainly advise international clients. Peers praise his solid understanding of clients needs and his business orientation. Christoph is admitted to the Bar, where he has practised since 2000. During this time he has gained in-depth knowledge of the legal business in and can count on a significant business network both in and outside of. He speaks on a regular basis on trust and foundation litigation issues as well as on fraud an asset recovery topics. In addition, he publishes the chapters on litigation, enforcement and attachment of assets in various international law guides. WGB is one of the leading firms in in the fields of litigation and arbitration, which is regularly reflected by band 1 rankings in the major legal guides. In addition, WGB offers a full service in all respects of commercial law in. WGB s client base ranges from multinational enterprises to local SMEs. A strong focus is also on private clients. 164 www.iclg.co.uk iclg to: LITIGATION & DISPUTE RESOLUTION 2015

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