04 September 2025

Private Expert Opinions such as Survey Reports Now Classified as Documentary Evidence in Swiss Civil Procedure: Old Wine in New Bottles?

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  • Legal
  • Litigation / Arbitration
  • Trade / Logistics / Competition

Survey reports play a key role in transport. What does their new classification as documentary evidence mean in civil proceedings? This article explores the practical implications.

  • Raphael Brunner

    Legal Partner

  • Marcel Stucky

    Senior Legal Associate

1. Survey Reports Serve a Practical Need

Where goods are stored or transported, damage can occur. In such cases, the parties involved often have a strong interest in quickly obtaining an expert assessment to document the damage and its potential cause as accurately and comprehensively as possible — whether because the warehouse operator wants the goods to be removed from his warehouse quickly, or because the goods are perishable.

This practical need is met by the survey reports drawn up by average adjusters on behalf of the parties, thus closing a gap that court -appointed expert opinions are unable to fill: Swiss law does provide for precautionary evidence proceedings under Art. 158 of the Swiss Civil Procedure Code (“CPC”), which, compared to ordinary proceedings, allows for a relatively quick receipt of a court-appointed expert opinion. However, even this procedure is lengthier compared to survey reports. In addition, transport cases regularly have an international dimension, i.e., the parties and goods may be located in different jurisdictions. If, for example, the parties have agreed on a jurisdiction clause in favor of Swiss courts, Switzerland also has jurisdiction for the preliminary evidence-gathering proceedings. It is questionable, however, whether this is beneficial to the case if the goods in question are not even located in Switzerland but abroad. This inevitably means that compromises are unavoidable when it comes to obtaining a court opinion in a timely manner.

2. Survey Reports Often Had Limited Impact in Court Proceedings

Commissioning an average adjuster can often be motivated by the fact that the survey report should support one's own position in any subsequent legal proceedings—because it was written by an independent expert.

However, under the old CPC, this was often a fallacy: if the survey report was commissioned by one of the parties themselves, it was considered a private expert opinion. Private expert opinions were not considered documentary evidence and were not included in the exhaustive list of evidence (former Art. 168 para. 1 CPC). Accordingly, they were not considered evidence that could be assessed by the court. Private expert opinions were therefore purely (albeit substantiated) party assertions. The practical relevance of this classification was evident in that they could not provide proof for certain factual assertions if the opposing party substantially disputed these assertions.

The advantage of a survey report was therefore mostly limited to the fact that the parties could substantiate the facts contained in the survey report. However, such reports could not generally be attributed greater significance or evidential value in civil proceedings.

3. Does the New Classification of Private Expert Opinions Have the Desired Effect?

The classification of party expert opinions as pure party assertions has been criticized time and again in legal doctrine, and rightly so: in transport law in particular, this classification does not take sufficient account of the practical significance of such survey reports.

The legislation has taken this criticism into account in the revision of the CPC of March 17, 2023. This revision came into force on January 1, 2025, and also applies to all proceedings already pending on January 1, 2025 (Art. 407f CPC).

Under the revised law, private expert opinions are now classified as documentary evidence under Art. 177 CPC and must therefore be considered by courts during the evaluation of evidence.

This change is undoubtedly a step in the right direction. However, the question remains whether the qualification as documentary evidence will effectively eliminate the previous shortcomings.

There is reason for doubt. Although now formally classified as documentary evidence, private expert opinions still do not carry the same evidentiary weight as court-appointed or arbitral expert reports. This is understandable: since one party commissions the expert, true independence cannot be assumed. Court-appointed experts, by contrast, are required to be independent and are legally obligated to provide truthful assessments under threat of criminal penalties.

Legal doctrine postulates that parties should adhere as closely as possible to the CPC provisions concerning court expert opinions in order to increase the evidentiary value of the private expert opinions.

This view is certainly convincing, but in our opinion, it does not change the fact that private expert opinions are still subject to uncertainty in terms of their consideration, even under the new CPC. By their very nature, court proceedings are often procedures with an open outcome. In view of the costs associated with party expert opinions, however, the question arises as to whether there are alternatives that would allow the expertise of average adjusters to be called upon within a reasonable period of time without having to compromise on the evidential value of the survey reports they compile.

4. Arbitral Expert Opinions: A Practical Alternative?

As noted, court-appointed expert opinions might be too late or are not easily procurable. A viable alternative is the use of arbitral expert opinions (Schiedsgutachten).

Unlike private expert opinions, arbitration opinions establish legally relevant facts binding on both parties. These are also binding on the court and are exempt from its consideration of evidence, provided that:

  • the parties can freely dispose of the underlying legal relationship (which is generally the case in transport law cases),
  • there are no grounds for recusal of the expert, and
  • the arbitral expert opinion was compiled without favoring either party and is not obviously incorrect (Art. 189 para. 3 CPC).

Arbitral expert opinions can achieve what survey reports, in the sense of party expert opinions, are generally unable to achieve: establishing the facts in a binding manner, thereby removing any ambiguities regarding the consideration of evidence.

However, it should be noted that a mere out-of-court agreement between the parties to jointly appoint an expert and split the costs equally is not sufficient for the assumption of an arbitral expert opinion. This also applies to so-called "contradictory expert opinions" which are common in international trade. This means that both sides (e.g., liability insurer/carrier/warehouse keeper and property insurer/cargo-interested party) are invited to and participate in an inspection appointment. Rather, it is necessary that the joint will of the parties to recognize the findings of the arbitral expert opinion as binding can be proven.

This necessitates the conclusion of a formal arbitration agreement This can be done when the damage occurs or at an even earlier stage.

5. Conclusion

The amendment of the Swiss CPC has added value by allowing private expert opinions to be considered as documentary evidence and must be included in the court’s consideration of evaluation.

However, their evidential value remains below that of court-appointed or arbitral expert opinions. In our opinion, the latter in particular are an effective means of at least partially limiting the uncertainty associated with party expert opinions.

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