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Court Assistance in the Taking of Evidence: Switzerland's Way Forward (Lorenz Raess)

The «light» draft revisions of Chapter 12 of the Swiss Private International Law Act include two proposed amendments regarding court assistsance in the taking of evidence. Accordingly, it is intended that in future, foreign arbitral tribunals with their seat outside of Switzerland will be able to request assistance in the taking of evidence directly from the Swiss state courts, including in relation to foreign procedural forms of evidence. This contribution considers the possible implications of these changes. It begins by discussing the new direct approach and considers it within the international context. In addition, it examines whether an arbitral tribunal will be able to seek court assistance even where the parties to the arbitration do not agree and vice versa. It then goes on to consider what the consideration of foreign procedural forms could mean in practice and compares this to Swiss domestic arbitration.