Revision of the Civil Procedure Code: Party expert opinions will be considered as full evidence
A key change to the law of evidence will come into force on 1 January 2025 with the revision of the Swiss Civil Procedure Code (ZPO): party expert opinions (private expert opinions) will now be considered documents. This is the legislature's response to the long-standing practice of treating party expert opinions as mere party assertions and not granting them any independent evidentiary value.
New legal situation: Art. 177 nZPO
Previously, only court expert opinions (i.e. expert opinions ordered by the court) were considered actual evidence. Party expert opinions were not considered expert opinions within the meaning of Art. 183 ff. ZPO, nor were they considered documents. Art. 177 nZPO closes this gap, as party expert opinions now expressly qualify as documents and are therefore admissible as evidence under Art. 168 para. 1 lit. b ZPO.
The court is now obliged to consider such expert opinions within the framework of the free evaluation of evidence (Art. 157 ZPO). Their probative value depends on the circumstances of the case in question, including the expertise, experience and independence of the expert witness, and the comprehensibility of the opinion. However, party-appointed expert opinions do not replace court-appointed ones. If there are doubts about the former's objectivity or quality, the court may still order the latter, which has full probative value due to the statutory obligations of independence and truthfulness.
This also applies to pending proceedings.
The transitional provision is particularly relevant in practice. According to Article 407f of the New ZPO, the new qualification also applies to pending proceedings. 407f nZPO, the new qualification also applies to ongoing proceedings. If a civil case is still pending on 1 January 2025, any party expert opinions that have already been submitted must be treated as evidence in future, rather than being qualified as mere party submissions.
Conclusion: The revision strengthens the position of the parties in civil proceedings and takes practical needs into account. Party expert opinions are becoming significantly more important, but this does not devalue the court expert opinion. It remains to be seen how strongly this shift will affect litigation practice, particularly how often courts will order additional expert opinions despite the submission of party expert opinions.