05 International Litigation and Alternative Dispute Resolutions
If an amicable settlement is not possible in a legal dispute – or not possible at the moment – the enforcement of rights through the courts becomes unavoidable. In this case, the following questions arise in particular.
Do you need a lawyer?
In Switzerland, at least, you generally do not need a lawyer to go to court. However, legal disputes quickly become legally demanding. Courts must give minimal procedural support to parties without lawyers, but they are chronically overburdened and usually have neither time nor patience for this. So, regularly, the involvement of a lawyer is unavoidable – and if the other party has a lawyer, you need one too, otherwise the «playing field» is unequal.
Who may represent you in court?
In Switzerland and many other countries, parties can only be represented by admitted, registered lawyers. Switzerland distinguishes between «Juristen/Juristinnen» (anyone with a law degree) and «Rechtsanwälte/Rechtsanwältinnen» (attorneys-at-law). The latter must, in addition to their law studies, complete an internship and pass the bar exam. Only they can be entered in the register of lawyers, which is kept by the cantons; once registered, a lawyer may represent parties before courts throughout Switzerland (Art. 4 BGFA).
Other countries organise the profession differently. England and Wales have two kinds of lawyers: solicitors are the lawyers with client contact – they advise, negotiate, draft contracts, prepare the case and may appear before the lower courts; barristers are specialised advocates who plead before all courts, work mostly self-employed in «chambers» and are traditionally instructed by a solicitor. Barristers are «called to the Bar» – the «bar» is not a restaurant, but originally the barrier in the courtroom that separated the lawyers from the public (Wikipedia, «Barrister»). The USA and the countries of continental Europe know only one profession (attorney-at-law, Rechtsanwalt, avocat, avvocato); in the USA, admission is granted by the «bar» of each state after the «bar exam».
How to find a (specialised) lawyer?
In Switzerland and in many other countries, the bar associations maintain online registers in which lawyers can be searched by location and region, but also by legal specialisation (s. lawyer search of the Swiss Bar Association, with more tips on finding a lawyer).
How expensive is a court dispute?
In Switzerland, the principle applies that the loser of a lawsuit must bear all the costs («the loser takes it all», Art. 106 CPC). These costs include the loser’s own lawyer’s fees, the court fees and the counterparty’s lawyer’s fees. The court fees and the compensation for the other party’s lawyer are calculated as a percentage of the amount in dispute (the value the lawsuit has for the plaintiff; in the case of a claim, the amount claimed). These costs can quickly become very high. The Zurich courts publish an online fee calculator (in German only). Your own lawyer will usually charge you for the actual time spent. As a rule of thumb, take the compensation for the other party’s lawyer calculated by the fee calculator and add 10 to 20 %. The plaintiff’s lawyer usually has somewhat higher costs than the defendant’s, since the plaintiff has to build the case, whereas the defendant merely reacts to it.
Exercise: what does it cost?
Rigi Roasters AG wants to sue Hotel Seefeld for CHF 100,000 before a court in Zurich. Open the fee calculator (use a translation tool if needed), enter CHF 100,000 as «Streitwert» and read off the ordinary court fee («Gerichtsgebühr») and the compensation for the other party’s lawyer («Parteientschädigung»).
Then add your own lawyer (compensation + 10–20 %). How much does Rigi Roasters risk if it loses through two instances? Would you still go to court for a claim of CHF 20,000? What does that tell you about the «ladder» in Chapter 05.01?
05 International Litigation and Alternative Dispute Resolutions