Latest updates
Forum running through action for negative declaratory judgment now admissible in Switzerland
Lenz & Staehelin- Litigation
- Switzerland
- June 05 2018
According to a new Federal Supreme Court decision, securing an advantageous place of jurisdiction in Switzerland (so-called 'forum running') in an international dispute is of sufficient interest for an action seeking a negative declaratory judgment. This new precedent enables parties domiciled in Switzerland to anticipate foreign proceedings initiated by a counterparty by filing an action for a negative declaratory judgment to drag the case before a court in Switzerland.
Federal Supreme Court rules on when restitution duty arises and on its prescription
Lenz & Staehelin- Litigation
- Switzerland
- August 15 2017
The Federal Supreme Court recently ruled on at which point the statute of limitation starts to run and what its duration should be. It found that the statute of limitation applicable to the claim for restitution was 10 years and that it started to run on the receipt of each payment by the agent. The issue of statutory interest remained undecided, but now appears much less controversial
Leading case on criminal liability of corporations for money laundering
Lenz & Staehelin- Litigation
- Switzerland
- December 13 2016
The Federal Supreme Court recently clarified that the criminal liability of enterprises is not a strict liability, but rather requires proof of a criminal offence in each case. The decision defines the limits of criminal law applicable to enterprises, particularly in respect of money laundering, and clarifies that the genuine or cumulative criminal liability of enterprises is not a strict liability for organisational deficiencies.
Federal Supreme Court decides on tax deductibility of fines
Lenz & Staehelin- Litigation
- Switzerland
- November 29 2016
The Federal Supreme Court has ruled that fines and other penalties of a criminal nature are not tax deductible for legal entities, as they are not deemed to be business-related expenses. Tax deductibility is granted only insofar as penalties aim at disgorging illegally obtained profits. For income tax purposes, it is essential to distinguish fines of a penal nature from those which aim to disgorge illegally obtained profits. However, the court provided no specific guidance on how to distinguish one from the other.
Termination of service contract
Lenz & Staehelin- Litigation
- Switzerland
- March 31 2015
In a recent case, Land Rover terminated a service contract with an authorised garage. The garage filed for preliminary relief with the Zurich Commercial Court, requesting that the court oblige Land Rover to continue the service contract after termination. The court rejected the request, concluding that Land Rover did not have a dominant position at the after-sale level.
Court decides on controversial issue of mandate agreements and agency
Lenz & Staehelin- Litigation
- Switzerland
- October 21 2014
The Zurich Commercial Court recently decided that the term 'obligation' according to the Code of Obligations not only includes specific contractual obligations, but may also apply to obligations on other legal bases, provided that they result from a legal transaction which the agent has concluded in its own name but in the interest and for the account of the principal.
Supreme Court raises independence standards for judges
Lenz & Staehelin- Litigation
- Switzerland
- February 25 2014
The Supreme Court recently clarified open issues regarding the independence and impartiality of judges, specifically of a part-time judge who was a partner in a law firm. The court clarified important issues and continued its trend of raising standards of independence for judges. The decision is welcome since it outlines the importance of the right to an impartial and independent judge and enhances trust in the judicial system.
Supreme Court extends creditors' access to freezing orders
Lenz & Staehelin- Litigation
- Switzerland
- May 07 2013
The Debt Enforcement and Bankruptcy Law enables a creditor to apply for an order to freeze a debtor's assets on the basis of a final enforceable title. The Supreme Court recently ruled that a foreign award without prior exequatur proceedings can constitute a final enforceable judgment, and thus under certain conditions justify a freezing order. This decision extends creditors' access to freezing orders, but does not give them free rein.
Design rights for watch cases - the risk of nullity counterclaims
Lenz & Staehelin- Litigation
- Switzerland
- September 11 2012
Design infringement proceedings always carry the risk of losing the rights in a design because of a successful nullity counterclaim by the counterparty. A recent decision shows that also prior design applications by third parties, which had not been made available to the public when the party's own design was filed for application, must be considered in this regard.
SWATCH versus ICEWATCH: trademark co-existence agreements
Lenz & Staehelin- Litigation
- Switzerland
- July 17 2012
The Federal Supreme Court has ruled on the appeal of Swatch Ltd, a leading Swiss watch and jewellery manufacturer, against a decision of the Berne Commercial Court to hold valid a trademark co-existence agreement between Swatch and TKS Ltd. The Supreme Court partially approved Swatch's appeal, revoked the commercial court's decision and remanded the matter to the commercial court for reappraisal.
Court assesses use of opinion poll in Oktoberfest-Bier
Lenz & Staehelin- Litigation
- Switzerland
- June 26 2012
The Federal Administrative Court recently ruled on an appeal by the Munich Breweries Association against a decision of the Federal Institute of Intellectual Property (FIIP) refusing to grant trademark protection for the term 'Oktoberfest-Bier' with respect to beer in Class 32. The FIIP had held that the sign was not distinctive and needed to be kept freely available under Article 2(a) of the Trademark Act.
Supreme Court rules on possibility for CAS to remedy procedural breaches
Lenz & Staehelin- Litigation
- Switzerland
- March 13 2012
The Supreme Court recently issued an interesting decision, in which it dismissed a motion to set aside an award rendered by the Court of Arbitration for Sport (CAS). This decision highlights the rule pursuant to which the CAS has "full power to review the facts and the law [and] may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance".
Supreme Court rules on the right to be heard
Lenz & Staehelin- Litigation
- Switzerland
- February 14 2012
The Swiss Supreme Court has overturned a Court of Arbitration for Sport (CAS) award regarding the contribution for legal costs due to a breach of X's right to be heard. This was because the CAS had requested the parties to file written comments on legal costs but failed to set a precise deadline for the parties to file such observations, and then issued its award without giving them the opportunity to be heard in this respect.
Supreme Court rules on retrocessions in the financial industry
Lenz & Staehelin- Litigation
- Switzerland
- October 11 2011
In Switzerland, the term 'retrocession' generally refers to certain forms of fee-sharing arrangement between financial intermediaries. Promoters of financial products frequently enter into agreements with other financial intermediaries whereby the fund promoter pays a retrocession to the fund distributor. The Supreme Court has now addressed the question of whether retrocession is subject to a restitution duty.
Fine imposed on taxi company for refusing to provide information upheld but reduced
Lenz & Staehelin- Litigation
- Switzerland
- August 09 2011
In a recent decision the Federal Administrative Court partly rejected an appeal from a taxi company. The taxi service company was fined Sfr10,000 by the Competition Commission in 2008 for not having provided information requested by the authorities. The appeal court held that the penalty was legally justified in principle, but reduced the amount to Sfr5,000.
Right of foreign family foundation to file claim before Swiss court
Lenz & Staehelin- Litigation
- Switzerland
- July 12 2011
In a recent case the Supreme Court had to decide whether a family foundation based in Vaduz, Liechtenstein, could be considered as a valid legal entity from a Swiss law perspective for the purposes of filing a claim before a Swiss court, despite the fact that the foundation's purpose was solely to provide an income to family members. The court's liberal approach has strengthened Switzerland's openness to trusts.
Supreme Court decision on public offering of collective investment schemes
Lenz & Staehelin- Litigation
- Switzerland
- June 28 2011
The Supreme Court recently ruled on the interpretation of the term 'public solicitation' with regard to collective investment schemes in or from Switzerland. The decision will have a significant impact on private placement rules which are applicable to the public offering of foreign investment funds and structured products in Switzerland. It is likely that the Swiss private placement rules will undergo further developments in the near future.
Termination notice of service partner contract for motor vehicles is valid
Lenz & Staehelin- Litigation
- Switzerland
- June 21 2011
The Zurich Commercial Court recently rejected interim measures sought by an authorised repairer of motor vehicles. The authorised repairer had requested the continuation of the existing service partner agreement on the grounds that the agreement had been terminated contrary to Section 17 of the Competition Commission Motor Vehicle Notice without cause and without substantiation.
Piercing the corporate veil for shareholder loans to distressed companies
Lenz & Staehelin- Litigation
- Switzerland
- April 12 2011
A recent Federal Supreme Court decision emphasised the point that controlling shareholders should carefully assess all of the relevant circumstances – in particular, the relationships between the distressed company and its controlling shareholder and the likelihood of a bankruptcy in the near future – before providing additional funds to a distressed company in the form of a shareholder loan.
Federal Supreme Court rules on pledges on movable goods
Lenz & Staehelin- Litigation
- Switzerland
- March 29 2011
Pledges on movable goods are a traditional form of security that is well suited to debtors that have no access to other forms of security. The most salient feature of the Swiss law on pledges is a provision that no pledge is validly constituted if the pledgor retains possession over the pledged assets. However, a recent Federal Supreme Court decision has raised practical difficulties relating to the pledge under Swiss law.
