Switzerland updates

Arbitration & ADR

Contributed by Tavernier Tschanz
Article 6(1) of ECHR is not separate ground to challenge arbitral awards
  • Switzerland
  • 12 November 2020

In a recently published decision, the Supreme Court dismissed a challenge against an arbitral award issued by the Court of Arbitration for Sport on preliminary objections. The Supreme Court held, among other things, that Article 6(1) of the European Convention on Human Rights is not a separate ground to challenge arbitral awards rendered in Switzerland. The court also determined whether a violation of Article 2 of the Civil Code renders an award per se incompatible with substantive public policy.

Supreme Court will not review findings that parties lacked actual and common intent to arbitrate
  • Switzerland
  • 10 September 2020

In a recently published decision, the Supreme Court upheld an arbitral award in which the arbitral tribunal had declined jurisdiction in the absence of a valid arbitration agreement. The court confirmed that it does not review arbitral tribunals' findings as to the parties' actual and common intent to arbitrate. In addition, it held that it cannot review an arbitral tribunal's findings of fact and outlined the exceptional circumstances needed for it to review a challenge of jurisdiction.

First annulment of investment arbitration award by Supreme Court
  • Switzerland
  • 02 July 2020

In a recently published decision, the Supreme Court – for the first time – partially annulled an arbitral award issued in an investment arbitration. A Geneva-based arbitral tribunal, which was constituted under the United Nations Commission on International Trade Law Arbitration Rules, had wrongly declined jurisdiction to decide an investment treaty claim brought by Clorox España SL against Venezuela.

One transaction but multiple arbitration agreements: extent of jurisdiction
  • Switzerland
  • 07 May 2020

The Supreme Court recently confirmed an arbitral tribunal's broad interpretation of the objective scope of an arbitration agreement contained in a quality assurance agreement (QAA) to cover disputes which were unrelated to the QAA but arose within the contractual relationship of the parties thereto.

Partial annulment of award based on ultra petita grounds
  • Switzerland
  • 20 February 2020

A recent case addressed the partial annulment of an award which granted damages where the prayer for relief sought only a declaration (ultra petita). In addition to confirming the well-established line of decisions on penalty and substantive public order, this decision is among the few annulments, albeit partial, of an international award by the Supreme Court.


Aviation

Contributed by Proton Legal LLC
EU drone regulations will apply in Switzerland
  • Switzerland
  • 24 June 2020

In 2019 the European Union issued a package of regulations relating to the use of drones. Although Switzerland is not a member of the European Union, both the EU Commission Implementing Regulation and the EU Commission Delegated Regulation will be adopted into Swiss law. The current Swiss regime on the operation of drones will remain in force until the end of 2020.

Federal Administrative Court weighs in on penalty levied on airline for carrying inadmissible persons
  • Switzerland
  • 04 March 2020

'Inadmissible persons' ('INADs') is a term used for passengers who are or will be refused admission to a state by its authorities. Pursuant to Article 122a of the Foreign and Integration Act, a violation of airlines' duty of care is presumed if the airline carries INADs. However, Article 122a departs from the presumption of innocence by requiring airlines to prove specific matters in order to avoid conviction. The Federal Administrative Court recently ruled on the matter.

Supreme Court acquits air traffic controller
  • Switzerland
  • 08 January 2020

The Supreme Court recently upheld an appeal against the conviction of an air traffic controller who had cleared two aircraft in quick succession to take off from two crossing runways at Zurich airport. The decision is welcome news and contrasts with recent convictions of air traffic controllers handed down in Switzerland for operational incidents that resulted in neither injury nor damage.

Supreme Court upholds air traffic controller conviction
  • Switzerland
  • 14 August 2019

The Supreme Court recently dismissed an appeal against the conviction of an air traffic controller for negligent disruption of public transport. In so doing, the court established a new precedent that allows for criminal prosecution and conviction for operational incidents that result in neither injury nor damage. As this decision makes it difficult for aviation professionals to treat their mistakes as learning opportunities, it is a major step backwards for aviation safety.

Air traffic controller convictions draw criticism
  • Switzerland
  • 15 May 2019

Air traffic controller and pilot organisations have criticised recent convictions handed down in Switzerland for operational incidents that resulted in neither injury nor damage. Critics have asserted that criminal prosecutions in the aviation sector tend to do more harm than good. Further, there is widespread concern that criminalisation leads to a loss of cooperation from individuals who could provide the most critical insight into the circumstances of an incident.


Banking & Financial Services

Contributed by Meyerlustenberger Lachenal
New licensing requirement for investment managers
  • Switzerland
  • 19 January 2021

The Financial Institutions Act came into force on 1 January 2020. It is crucial that the top management bodies of independent and external investment managers which manage the portfolios of individuals recognise whether a licensing obligation exists and whether appropriate measures must be initiated, as they are responsible for compliance with and the implementation of licensing obligations.

New DLT law is just around the corner
  • Switzerland
  • 12 January 2021

In September 2020 Parliament passed a law to incorporate crypto assets and digital ledger technologies (DLT) into Swiss law. Once the law enters into effect, Switzerland's already high-quality regulatory framework for crypto will become one of the most advanced in the world. The government's explicit approach is to create the best possible framework conditions so that Switzerland can establish itself and evolve as a leading, innovative and sustainable location for fintech and DLT companies.

499 + 1 = 500? Practical approach on new 500-investor threshold exemption
  • Switzerland
  • 29 September 2020

In January 2020 the Financial Services Act and the Financial Services Ordinance entered into force and established comprehensive rules relating to prospectuses offering securities and the admission of securities to trading, which will apply to all types of financial instrument. This article discusses the 500-investor threshold's practical implications and compliance requirements and its expected impact on the Swiss market.

Execution-only relationship – transactions without mandate and calculation of damages
  • Switzerland
  • 21 July 2020

A recent Supreme Court decision concerned a case in which a relationship manager with a Swiss bank left said bank without the relevant bank's client being informed. The relationship manager continued to act on the client's behalf and gave investment orders to the bank, which the bank followed. The bulk of the court's decision discussed how the relevant damages suffered by the client must be alleged, contested and determined.

FINMA brings more clarity to transition regimes for financial service providers
  • Switzerland
  • 14 July 2020

The new Financial Services Act and Financial Institutions Act came into force on 1 January 2020 together with their implementing ordinances. These laws oblige the Swiss Financial Market Supervisory Authority to license several new bodies, such as supervisory organisations responsible for supervising portfolio managers and trustees, as well as registration bodies responsible for maintaining client advisory registers.


Competition & Antitrust

Contributed by Lenz & Staehelin
Parliament agrees on stricter concept of market power
  • Switzerland
  • 14 January 2021

Parliament is currently debating the so-called 'fair price initiative' and an indirect counter-proposal by the government, both of which aim to tighten the Cartel Act. Among other new provisions, the concept of relative market power will be introduced to combat foreclosure of the Swiss market and price discrimination against Swiss corporate customers. Both chambers of Parliament have agreed that the concept of relative market power will apply not only to suppliers, but also to customers.

Federal Administrative Court adopts broad interpretation of merger notification obligation for dominant undertakings
  • Switzerland
  • 10 December 2020

Under Swiss competition law, a proposed concentration may trigger a mandatory pre-merger notification obligation if one of the undertakings concerned has been held to be dominant, irrespective of the statutory turnover thresholds. The scope of this provision is controversial. The Federal Administrative Court has now adopted a broad interpretation of the merger notification obligation for dominant undertakings, thereby exacerbating the issues associated with this provision.

Dieselgate: Foundation for Consumer Protection suit not considered on its merits
  • Switzerland
  • 20 August 2020

While certain stakeholders consider the existing system of collective redress in Switzerland to be sufficient, it seems possible that the unsuccessful outcome of Foundation for Consumer Protection lawsuits could revive the debate on the strengthening of collective redress in the Swiss legal system, particularly in the context of the ongoing revision of the Civil Procedure Code. In the longer term, this could also lead to a facilitation of collective redress in civil antitrust law, which is currently extremely challenging.

Secretariat of ComCo advises on obligation to notify concentration
  • Switzerland
  • 28 May 2020

Under Swiss law, a proposed concentration triggers a mandatory pre-merger notification if one of the undertakings concerned has been held to be dominant, irrespective of the statutory turnover thresholds. It was previously unclear whether this criterion had to be met at the time of signing or at the time of closing. The Secretariat of the Swiss Competition Commission has now clarified this question.

COVID-19 crisis: guidelines for dealing with antitrust risk
  • Switzerland
  • 23 April 2020

Companies in a wide range of industries are facing major challenges due to the COVID-19 crisis. Such challenges include strongly increased or decreased demand, possible supply chain bottlenecks and even supply shortages. Although the situation is exceptional, antitrust rules still apply. The only exceptions are if the government and authorities order measures to combat the COVID-19 crisis that restrict competition.


Corporate & Commercial

Contributed by Badertscher Attorneys at Law
Liability of directors and board members in corporate groups
  • Switzerland
  • 14 December 2020

In practice, most large companies are structured as corporate groups. Corporate groups are recognised and in certain areas regulated by Swiss law (eg, accounting). However, there is little case law discussing the characteristics of corporate groups, particularly the liability of group executives. In a recent decision in the context of the collapse of the Swissair Group in 2001, the Federal Supreme Court commented on the liability of directors and board members in corporate groups.

Federal Supreme Court: negative interest in loan agreements
  • Switzerland
  • 13 April 2020

The Federal Supreme Court recently dealt with the question of whether the interest payment obligation in loan agreements can be reversed due to the introduction of negative interest. For the first time the court has held that, unless the parties have agreed otherwise, the obligation to pay interest under a loan agreement cannot be shifted to the lender.

Enforcing board members' information rights
  • Switzerland
  • 25 March 2019

The Federal Supreme Court recently considered – for the first time – whether board members' rights to information, inspection and insight can also be asserted on an appeal basis. The court also commented on the type of procedure applicable in such cases. This decision should be taken into account by board members who lack evidence or knowledge of important or necessary information, particularly if it relates to the organisation of or disputed relationships within the board of directors.

Shareholders' agreements for closely held companies under Swiss law
  • Switzerland
  • 13 November 2017

Shareholders of closely held companies often mutually agree on additional contractual rights and duties. However, the company itself cannot be a contract party to a separate shareholders' agreement. Apart from that legal restriction, such shareholders' agreements usually benefit from the contractual freedom of the parties. A recent Federal Court decision confirmed that such agreements may be recharacterised as abusive or contrary to the principle of good faith.

Interpretation of company articles in Sika takeover battle
  • Switzerland
  • 22 May 2017

A recent Zug Cantonal Court decision sheds light on the way that Swiss company articles of association must be interpreted under Swiss company law in cases in which they are not only applicable internally among a few shareholders, but also have an effect on third parties. The decision confirms that the observation of merely the letter and not the spirit of company articles by a company board or majority company shareholders in a general meeting can even amount to an abuse of law.