Blog

When worlds collide – how repealing renewables incentives could infringe investment protection treaties and lead to arbitration.

27 February 2024

In the wake of E.ON’s substantial damages against Spain, we look at the pitfalls facing both States and investors when policies are changed. Read more here.

Shrinking investment protection in the EU: can Swiss and other BITs act as a safety net for intra-EU investments?

26 February 2024

As the EU dismantles its network of investment protection treaties among Member States, we investigate alternative avenues open to investors. Read more here.

UK WITHDRAWAL FROM THE ect – WHAT NEXT FOR INVESTORS?

23 February 2024

As the UK announces its exit from the ECT, we discuss possible options open to investors. Read more here.

The impact of Mali’s revised legislation on foreign mining companies

19 October 2023

Two years after its military coup, Mali has adopted a new mining code and legislation on local content: we examine key aspects of this reform and the implications for foreign mining companies. Read more here

OFFSHORE WIND – A rise in disputes in an industry at the crossroads

10 October 2023

Ambitious targets for the development of offshore wind have locked horns with global inflation and other adverse events, leaving stakeholders at risk of a range of potential disputes. Read more here.

The revised Swiss data protection act and international organisations

21 August 2023

Changes to the Swiss Data Protection Act should bring clarity for international organisations operating or based in Switzerland The revised version of the Swiss Federal Act on Data Protection (“FADP”) will enter into force on 1st September 2023, including an anticipated change to Art. 2(2) FADP Read more here.

RUSSIA UPDATE: new law aims to force out “unfriendly” foreign investors

10 August 2023

A new Russian law permits excluding investors from “unfriendly” States from holding shares in significant Russian companies by transferring their interests to Russian beneficiaries. As reported previously, the Russian State is stepping up countersanctions against foreign investors from so-called “unfriendly” countries that have sanctioned Russia over the invasion of Ukraine, […]

Payward v Chechetkin: Consumer protection trumps enforceability of crypto award

3 August 2023

A recent ruling from the English Commercial Court highlights the potential challenges faced by crypto platforms in enforcing arbitral awards in England against consumers due to public policy considerations. Read more here.

UK Supreme Court holds many litigation funding agreements to be unenforceable: What next for third-party funding?

28 July 2023

On 26 July 2023, the UK Supreme Court delivered its judgment in R (PACCAR) v Competition Appeal Tribunal [2023] UKSC 28, in which it held that litigation funding agreements granting funders a percentage of the claim proceeds are “damages-based agreements” within the meaning of UK legislation. Unless those litigation funding […]

Burkina Faso: Investment protection in times of political and military uprisings

13 July 2023

Recent uprisings in Burkina Faso have created a climate of turmoil and instability, but there are mechanisms in place that foreign investors can turn to for protection in such uncertain times. This article is the third in a series on the impact of military uprisings in West Africa on foreign […]

The new Swiss Climate and Innovation Act – a boost for renewables

10 July 2023

The Swiss public has voted for climate change legislation that favours significant investment in renewable energies, energy efficiency and climate protection,[1] creating opportunities for investors from Switzerland and abroad. Read more here.

Corporate litigation – guidance on court measures to remedy organisational defects.

19 June 2023

Actions for organisational defects have become an important tool in shareholder disputes and boards should take heed that some recent decisions have taken a hard line over a lack of good governance. Read more here.

Final call for Swiss sustainability reporting by listed companies and bond issuers as well as financial institutions

24 May 2023

As of the current financial year, large listed companies and issuers of bonds as well as FINMA-supervised institutions must provide extensive transparency on non-financial matters (Art. 964a et seq. of the Swiss Code of Obligations, “CO”). Read more. The article is also available in French and German.

MODERNISING THE ENERGY CHARTER TREATY – WHAT IS THE SWISS POSITION?

15 May 2023

While many EU countries have decided to leave the Energy Charter Treaty – citing incompatibility with green energy goals – Switzerland is maintaining a wait-and-see approach, mindful of its potential impact on Swiss energy companies and investment funds. Read more here.

ATTORNEY-CLIENT PRIVILEGE: FURTHER SUPREME COURT CLARIFICATION ON OBLIGATIONS FOR LAW FIRMS CONDUCTING INTERNAL INVESTIGATIONS

31 March 2023

In its decision 1B_509/2022 dated 2 March 2023 the Swiss Federal Supreme Court (“SFSC”) once again ruled on the extent of the applicability of the attorney-client privilege in relation to documents produced in the course of an internal investigation. Read more here.

Unsigned contracts: can they be binding under Swiss law?

28 March 2023

Under Swiss law, contracts do not always need to be signed to be considered legally binding. Parties negotiating agreements should therefore take measures to ensure their intentions are clear to avoid potential disputes. Read more here.

ESG litigation in Switzerland – Risks and possible defence strategies

6 March 2023

LALIVE partner Matthias Gstoehl examines the main ESG litigation risks and possible defence strategies for companies and their directors in Switzerland, a topic high on the agenda for many corporates and their boards. Read more here.

SUSTAINABLE FINANCE IN SWITZERLAND – THE GREENWASHING RISK

21 February 2023

On 16 December 2022, the Swiss Federal Council published its position on the prevention of greenwashing in the financial sector, setting up a working group to come up with next-step proposals by the end of September 2023. In this article we consider recent developments in sustainable finance and how they […]

Dispute prevention: opening and operating a Swiss bank account

27 January 2023

Banking documentation is at the heart of litigation between clients and Swiss banks. Clients should be aware of general best practice rules, particularly when opening bank accounts, to avoid unnecessarily waiving certain rights and protections. Read the article here.

WAR CLAUSES IN IIAs – WHAT PROTECTION DO THEY OFFER?

10 November 2022

Russia’s invasion of Ukraine, now entering its ninth month, has once again thrown into sharp relief investor-state disputes arising out of war and armed conflict. Under the terms of most international investment agreements (“IIA”), a State agrees to protect the investments of investors from another State from discrimination, expropriation, and […]

Third-Party Funding: EU Parliament’s Proposals for Regulation and their Implications for Arbitration

28 October 2022

The EU Parliament has proposed far-reaching regulations affecting third-party funding of EU-seated claims. The regulations, if implemented, could make third-party funding in the EU more expensive or even inaccessible in some circumstances, and could go as far as to impact intra-group company loans granted for the purpose of pursuing litigation […]

The new Swiss negotiation approach – implications for Swiss foreign investors

30 September 2022

The newly-concluded bilateral investment treaty (BIT) between Switzerland and Indonesia is based on Switzerland’s new negotiation approach and gives Swiss investors a taste of what protection standards they can expect in the future. Read more here

Russia update: exodus from extractive industries and latest measures against foreign investors

22 September 2022

Foreign investors in Russia may find themselves on the horns of a dilemma. Following the invasion of Ukraine and Russian countersanctions, many investors have found it necessary to wind down their business operations in Russia. Yet recent decrees by the Russian government can block those same investors from selling their […]

New Model BIT for African States Facilitates Counterclaims against Foreign Investors

31 August 2022

In recent years, in certain investment arbitration proceedings, States have brought counterclaims alleging that foreign investors had failed to comply with CSR principles. In all but two cases, these counterclaims have been unsuccessful. Read more here.

WILL FRANCE’S CONDUCT TOWARDS EDF GENERATE A WAVE OF INVESTMENT ARBITRATIONS?

16 August 2022

EDF’S CURRENT WOES IN THE MIDST OF ITS NATIONALISATION Last week, Électricité de France (EDF), the main electricity provider in France and one of the largest electricity companies in the world, sued France, its current majority shareholder, for compensation of EUR 8.34 billion. The company alleges it was forced to sell […]

A SHORT ANALYSIS OF THE PROTECTIONS OFFERED TO TURKISH INVESTMENTS UNDER INTERNATIONAL LAW – PART 2

15 August 2022

The second article of the series on international law protections offered to Turkish investors provides a short analysis of the Turkish BITs with Russia and four of the Turkic states, namely Kazakhstan, Kyrgyzstan, Turkmenistan and Uzbekistan. Future articles of the series will look at other relevant BITs. Read more here […]

A SHORT ANALYSIS OF THE PROTECTIONS OFFERED TO TURKISH INVESTMENTS UNDER INTERNATIONAL LAW

19 July 2022

This series of articles focuses on the countries and regions in which Turkish investors invest in, considering the data released by the Turkish Ministry of Commerce and UNCTAD. They provide a short analysis of the protections offered to Turkish investments under the bilateral investment treaties (BITs) which Turkey has with […]

Land rights in Chile – impact of proposed constitutional changes on foreign investors

15 July 2022

Indigenous peoples in Chile will gain significant new rights and protections over land, resources and territories under the proposed new constitution, raising major implications for existing and future foreign investors in the country. On 4 July 2022, the Chilean Constitutional Convention (Convención Constitucional) finalised the draft of a new constitution […]

INTERNAL INVESTIGATIONS AND CORPORATE GOVERNANCE – BE PREPARED

1 July 2022

ESG matters are core to a company’s reputation and standing, so organisations should ensure that they have effective governance structures in place to respond swiftly and decisively to potential breaches, to halt potential crises in their tracks. Although not a day-to-day topic for a board of directors, internal investigations remain […]

THREE SIMPLE RULES FOR CONDUCTING A CROSS-EXAMINATION

11 May 2022

Seasoned arbitration practitioners are used to seeing various ways to conduct a cross-examination, not all of which are equally effective. It is in the interest of our clients, as well as, indirectly, the arbitration industry, that cross-examinations are conducted as efficiently and effectively as possible. Increased efficiency will result in […]

Newsflash – New Swiss sanctions against Russia and Belarus enter into force

29 April 2022

On 28 April 2022, the latest round of sanctions against Russia and Belarus entered into force in Switzerland (the “Swiss Ordinance”). These sanctions are based on the fifth sanctions package introduced by the European Union (“EU”) on 8 April 2022. This update provides an overview of the most recent Swiss […]

Newsflash – Switzerland announces further sanctions to be adopted against Russia and Belarus

14 April 2022

On 13 April 2022, the Swiss Federal Council adopted the fifth sanctions package against Russia and Belarus introduced by the European Union on 8 April 2022 in response to the war in Ukraine (see Swiss press release here and EU press release here). Read more here.

POSSIBLE CLAIMS AGAINST RUSSIA FOR EXPROPRIATION OF FOREIGN INVESTMENTS

11 April 2022

On 8 April 2022, a draft law was introduced in the Russian Duma (Parliament) which would allow Russia to expropriate property of foreign nationals from “unfriendly” countries – those that have imposed sanctions on Russian entities and individuals. This news came on the heels of a draft bill introduced the […]

THE EMERGENCE OF CSR PRINCIPLES IN INTERNATIONAL INVESTMENT ARBITRATION AWARDS

7 April 2022

As corporate social responsibility (“CSR”) principles gain in popularity, investors should be aware that failure to abide by these principles might affect their chances of success in international investment disputes. Though some 65 international investment agreements refer to the UN SDGs and/or CSR principles, these provisions remain largely untested and […]

Belt and Road Initiative – Recent developments

1 April 2022

Introduction: In 2013, President Xi Jinping first introduced China’s Belt and Road Initiative (“BRI”) to the world.[1]  It was seen as an endeavour to re-establish China’s place at the centre of the economic and geopolitical arena. Yet, what first began as a project to revive the ancient silk road’s prosperity […]

Overview of EU, Swiss and UK sanctions against Russia and Belarus

28 March 2022

EXECUTIVE SUMMARY The European Union, Switzerland, the UK and other jurisdictions havecontinued to expand sanctions against Russia and Belarus in response tothe war in Ukraine. The current restrictions now consist of a coordinated,comprehensive web of far-reaching targeted sanctions, financialrestrictions, and economic embargoes (for an overview of the currentsanctions, see our […]

Gold Pool v. Kazakhstan: The Standard of Correctness in Investment Treaty Arbitration

9 March 2022

The article has been published in Jus Mundi. Please find it here.

Overview of EU, Swiss and UK sanctions on Russia and Belarus

4 March 2022

In response to the emerging conflict in Ukraine following the recognition by Russia of the non-governmental controlled areas of Donetsk and Luhansk and the subsequent military invasion of Russian troops on 24 February 2022, the international community imposed sanctions on Russian individuals, businesses and assets. Read more here.

The Metaverse and International Arbitration – How to Anticipate and Resolve Web 3.0 Disputes

4 March 2022

It’s boom time for the metaverse – over the past few months, tech giants, clothing brands and anonymous individuals have invested hundreds of millions of US dollars in the metaverse. Virtual real estate prices have skyrocketed. And this is only the beginning of the metaverse era. But how can legal […]

Armed conflict and force majeure

3 March 2022

Armed conflict can cause disruption to the operation of cross-border contracts and the remedies available. We examine the remedies which may be available under force majeure in these circumstances. Read more here.

Overview of EU, Swiss and UK sanctions on Russia and Belarus

1 March 2022

Introduction In response to the emerging conflict in Ukraine following the recognition by Russia of the non-governmental controlled areas of Donetsk and Luhansk and the subsequent military invasion by Russian troops on 24 February 2022, governments across the globe including the European Union, Switzerland, the United Kingdom and United States […]

CRYPTOCURRENCY MINING IN KAZAKHSTAN: PROTECTIONS FOR FOREIGN INVESTORS

25 February 2022

As regulatory changes in Kazakhstan rattle the country’s booming cryptocurrency industry, foreign investors may need to look to investment treaties for legal protection. Read more here.

Swiss Supreme Court decision on competing rights to attached assets

17 February 2022

The Swiss Supreme Court has clarified the position where litigants assert competing rights to attached assets, covertly overturning its prior case law, an important development for international recovery lawyers. This ruling (decision 5A_485/2021) by the Swiss Supreme Court concerns disputed artworks formally owned by third party A, which were attached […]

The new FIDIC Green Book Short Form of Contract explained

10 February 2022

FIDIC’s revised Green Book is intended to cater to larger projects than its predecessor, and includes novel liquidated damages clauses for prolongation costs and losses arising from termination, as well as the appointment of an engineer for the administration of the contract. Read more here.

PROPOSED TEXT FOR NEW CHILEAN CONSTITUTION PROVIDES FOR NATIONALISATIONS IN THE MINING INDUSTRY AND TAKING DOWN CHILE’S NETWORK OF INTERNATIONAL INVESTMENT TREATIES

9 February 2022

Chile’s constitutional reforms could have far-reaching implications for the mining industry; investors in the country should be prepared for a seismic shift in operations and rights of redress. Read more here.

Corporate Litigation – Clarification on UBO reporting obligations

3 February 2022

Swiss Court gives important clarifications on UBO reporting. LALIVE successfully represented the shareholder as claimant in this corporate litigation, resulting in invalidation of shareholders’ resolutions. The decision was published as a noteworthy judgment[i]. Read more here. [i] The decision as published can be found here.

MALI ECOWAS SANCTIONS: THE IMPACT ON FOREIGN INVESTORS

27 January 2022

As a major gold, diamond and mineral producer, Mali’s response to recent sanctions will impact business in the region, forcing investors to turn to legal protections to avoid disruption. Read more here.

SWISS GOVERNMENT TO SHINE A LIGHT ON GREENWASHING

24 January 2022

In 2022, the Swiss government will crack down on greenwashing. Large financial companies are now subject to new disclosure requirements. Collective investment schemes which advertise as “sustainable” are also subject to increased scrutiny, paving the way for more compliance control by authorities and recourse for investors. Importantly, climate compatibility indicators […]

DOES YOUR ORGANISATIONAL GOVERNANCE REFLECT YOUR ESG AMBITIONS?

7 December 2021

Good governance – the “G” of ESG – enables a responsible organisation to align its environmental and social ambitions with the fulfilment of its purpose. The publication of ISO Standard 37000, Governance of organizations, now provides an international blueprint for this, with guidelines on how to achieve sustainable long-term value. […]

CORPORATE SOCIAL RESPONSIBILITY UNDER INTERNATIONAL INVESTMENT TREATIES

11 November 2021

With the world awaiting the decisions coming out of COP26, responsibility, accountability and international co-operation are fast becoming the new direction of travel. This movement is also affecting international investment treaties, where a shift towards greater scrutiny of investors’ commitment to CSR principles is changing the symmetry of such agreements. […]

GUINEA: OUTLOOK ON INVESTMENT PROTECTION ONE MONTH AFTER THE COUP

11 October 2021

THE COUP AGAINST PRESIDENT ALPHA CONDE On 5 September 2021, Lieutenant-colonel Mamady Doumbouya appeared on national Guinean TV, surrounded by eight of his men in combat gear, announcing that the president, Mr Alpha Condé had been removed from office. He proclaimed the suspension of the institutions, including the government, and […]

Commercial Dispute Resolution – Essential Intelligence: The Belt and Road Initiative

22 September 2021

LALIVE Associate Baptiste Rigaudeau provides insights in an expert analysis chapter highlighting the impact of China’s Belt and Road Initiative in a 2021 report published by the International Comparative Legal Guides. The report provides useful reference and discussion points for Belt and Road Initiative disputes, in project finance, investment and […]

Attorney General’s Office: It simply needs more.

14 September 2021

Simone Nadelhofer comments on Swiss parliamentary commission proposal for the head of Bern’s cantonal police to become Switzerland’s new attorney general, one year after the top prosecutorial role was left vacant. Simone highlights the ways in which the attorney general’s office could benefit from more energy, diversity, balance, and courage […]

East Africa Infrastructure Projects and Disputes: as countries in Sub-Saharan Africa are striving to bridge the infrastructure gap to meet the needs of their rapidly growing populations and to foster economic growth, the number of disputes over infrastructure projects is inevitably growing.

13 September 2021

LALIVE Partner Bernd Ehle, Associate Baptiste Rigaudeau, and Deputy Counsel for the International Chamber of Commerce Benjamin Ng’eno, provide insights into the dispute resolution practice relating to infrastructure projects in East Africa, highlighting the impact of China’s Belt and Road Initiative in a bilingual English/French article published in the International Business Law […]

Business and human rights: Swiss companies face new due diligence obligations

1 September 2021

On the 10th anniversary of the United Nations Guiding Principles on Business and Human Rights’ (“UNGPs”) adoption, some of its most important provisions are finally being voted into law around the globe. Cases against multinationals for human rights violations within supply chains are rising globally, as are criminal proceedings for […]

Documentation of data processing activities under the revised Swiss Federal Act on Data Protection

25 June 2021

The revised Swiss Federal Act on Data Protection (“RDPA”) will govern the processing of personal data by private companies in Switzerland as well as those established abroad whose personal data processing activities have an effect in Switzerland. Companies will need to identify their processing activities and maintain a record of […]

SUCCESSFUL GROUP ACTION AGAINST A SWISS BANK FOR MONEY LAUNDERING

23 June 2021

A recent group action in the Geneva Appeal Court was successful in claiming damages against a Swiss bank on the basis of a money laundering offence committed within the bank. Forty parties were involved in the group action. In a judgement dated 1 September 2020 and published early 2021, the […]

SWISS PARLIAMENT AMENDS THE ANTI-MONEY LAUNDERING ACT AND (INADVERTENTLY?) INTRODUCES NEW COMPLIANCE DUTIES

12 May 2021

On 19 March 2021, the Swiss Parliament adopted the revised Anti-Money Laundering Act (AMLA) in the context of the Federal Government’s legislative initiative aimed at implementing recent FATF recommendations. Absent a public referendum, which at this stage seems unlikely, the revised AMLA is expected to enter into force in the […]

IMPLICATIONS OF BREXIT ON BRITISH INTERESTS IN SWITZERLAND

4 May 2021

Although the United Kingdom (“UK”) left the European Union (“EU”) as of 31 January 2020, the bilateral agreements between Switzerland and the EU continued to apply to the UK during the so-called transition period having lapsed on 31 December 2020. Since 1 January 2021, these agreements have ceased to apply. […]

COUP D’ETAT IN MYANMAR – WHAT NEXT FOR FOREIGN INVESTORS?

20 April 2021

EXECUTIVE SUMMARY The coup d’état by Myanmar’s military has sparked mass protests, which have been met with the imposition of martial law, media and telecommunication blackouts, and human rights violations, including mass arrests and deadly force. Many foreign investors have been required to suspend operations to ensure the security of […]

Deception and detection: the use of technology in assessing witness credibility

26 March 2021

Tribunals, like courts, have long grappled with differentiating truthful from untruthful witnesses. A number of cases before the Court of Arbitration for Sport have considered whether polygraph evidence is admissible as a means of verifying witness testimony, though tribunals have not reached any consensus. Now, authorities in several countries are […]

ISRAELI TAX AUTHORITY LAUNCHES TAX OFFENSIVE IN SWITZERLAND AND TARGETS ABOUT 280 ISRAELI CITIZENS AND OFFSHORE COMPANIES

15 March 2021

The Swiss Federal Tax Authority (FTA) has received requests for mutual administrative assistance from the Israel Tax Authority (ITA) regarding approximately 120 Israeli citizens and 150 related offshore companies. The request is based on the Double Tax Treaty between Switzerland and Israel that entered into force in 2003. The list […]

IMPACT OF BREXIT ON ASSET RECOVERY IN SWITZERLAND

11 March 2021

In a judgment of 24 February 2021, a Swiss court dealt for the first time with the impact of Brexit on asset recovery in Switzerland. The Swiss court dismissed an application for the declaration of enforceability of an English judgment of September 2020 and the granting of a corresponding attachment order. Departing […]

Die Selbstanzeige des Unternehmens infolge einer (belastenden) internen Untersuchung

22 February 2021

Simone Nadelhofer und Adam El-Hakim untersuchen in ihrem Beitrag im Jusletter vom 22. Februar 2021 die Chancen und Risiken einer Selbstanzeige des Unternehmens infolge einer (belastenden) internen Untersuchung. Insbesondere zeigen sie auf, anhand welcher Kriterien sich die Unternehmensleitung beim Entscheid für oder gegen eine Selbstanzeige leiten lassen soll. Der Artikel […]

2021 ICC ARBITRATION RULES – WHAT THE REVISED JOINDER AND CONSOLIDATION RULES MEAN FOR CONSTRUCTION DISPUTES

18 February 2021

What’s new in the 2021 ICC Rules on joinder and consolidation? The most notable changes in the new 2021 ICC Rules of Arbitration, which are applicable to all ICC arbitrations initiated from 1 January 2021, make it easier to join an additional party to a pending arbitration and to consolidate […]

THE US ANTI-MONEY LAUNDERING ACT 2020 AND ITS IMPLICATIONS FOR SWISS BANKS

12 February 2021

OVERVIEW AND KEY TAKE-AWAYS The U.S. Anti-Money Laundering Act 2020 (“AMLA”) expands the ability of U.S. Authorities to request information from Swiss banks that use U.S. correspondent banks. The information may be requested in respect of  any bank account of the foreign bank that is related to a pertinent U.S. […]

CAUSATION, QUANTUM AND “ROLLED-UP CLAIMS” – ENGLISH COMMERCIAL COURT PARTIALLY SETS ASIDE INVESTMENT AWARD AGAINST KAZAKHSTAN

11 December 2020

On 23 November 2020, the English Commercial Court (the “Court”) upheld a challenge brought by the Republic of Kazakhstan (“Kazakhstan”) under section 68(2)(a) of the Arbitration Act 1996 (the “Act”). The Court held that the tribunal had awarded damages to World Wide Minerals Limited (“WWM”) and another (together, the “Defendants”) […]

The Swiss Responsible Business Initiative: what business & human rights obligations for Swiss companies?

29 October 2020

The growing reach and impact of business enterprises have given rise to a debate about the roles and responsibilities of such actors regarding human rights and have led to the placement of business and human rights (“BHR”) on the agenda of many international organisations and countries. At an international level, […]

ENGLISH SUPREME COURT RULES ON THE PROPER LAW OF THE ARBITRATION AGREEMENT

16 October 2020

On 9 October 2020, the English Supreme Court (the “Court”) in Enka Insaat Ve Sanayi AS (“Enka”) v OOO Insurance Company Chubb (“Chubb”)[1] clarified the applicable principles for determining the proper law of an arbitration agreement. The contract in question did not contain a choice of law governing the contract […]

THE VIRTUAL MATRIX: RE-THINKING HEARINGS IN INTERNATIONAL ARBITRATION

31 August 2020

Introduction The received wisdom is that virtual hearings are a subprime alternative to in-person hearings, a secondary option to be used only when classical in-person hearings are not possible or too costly. However, as a result of technological advances, and a change in perceptions based on recent experiences, virtual hearings […]

GOVERNANCE UND KONTROLLE DER CORONA-KREDITE

24 June 2020

Einführung Am 25. März 2020 erliess der Bundesrat die COVID-19-Solidarbürgschaftsverordnung zur Abfederung der wirtschaftlichen Auswirkungen der Bekämpfung der COVID-19-Pandemie. Bis heute (Stand 22. Juni 2020) wurden unter dieser Verordnung ca. 128’500 Kredite im Umfang von ca. CHF 15 Milliarden gewährt. Medienberichterstattung über Missbräuche und eingeleitete Ermittlungen der Strafverfolgungsbehörden In den […]

WHOLESALE ELECTRICITY TRADING CONTRACTS: CALCULATION OF DAMAGES FROM NON-PERFORMANCE – AN INCREASINGLY RELEVANT ISSUE

14 May 2020

Electricity, and the business of its wholesale trading, have particular characteristics which set them apart from the trading of other goods. It is for this reason that electricity trading is specifically excluded from the United Nations Convention on Contracts for the International Sale of Goods (see Article 2(f)). Electricity is […]

CORONA, COMPLIANCE AND CONTROL – HOW TO PREVENT THAT TODAY’S COVID-19 CRISIS CAUSES TOMORROW’S COMPLIANCE CRISIS

11 May 2020

In the pandemic, many undertakings must focus on survival and need to maintain liquidity, which demands ongoing earnings and control of costs. Ongoing earnings are hard to achieve in a global economic downturn. No doubt that the ubiquitous and ever-present legal risks associated with being in the business of doing […]

Impact of Covid-19 on criminal proceedings – Update

29 April 2020

On 21 March 2020, the Swiss Federal Government promulgated the Ordinance on the suspension of time periods in civil and administrative proceedings to provide for the discharge of justice during the current Covid-19 crisis. On 9 April 2020, the Swiss Federal Government announced that the suspension of time periods in […]

COVID-19 ORDINANCE 2: NEW MEASURES TO PROTECT THE HEALTH OF VULNERABLE EMPLOYEES

24 April 2020

On 16 April 2020, the Swiss federal government amended the Ordinance on Measures to Combat the Coronavirus (COVID-19) (“COVID-19 Ordinance 2”) of 13 March 2020[1] and adapted the regulations for employers concerning particularly vulnerable employees, i.e. “High-risk employees”. Who is a High-risk employee? A High-risk employee is a person who […]

SWITZERLAND: UPDATE ON SWISS GOVERNMENT MEASURES FOR DEBTORS AND CREDITORS IN CASE OF FINANCIAL DISTRESS RESULTING FROM COVID-19

17 April 2020

The recent outbreak of COVID-19 and the public health measures taken by the Swiss government are causing many businesses to face extraordinary challenges, potentially leading to financial distress. Difficulties may arise for a company either because it has trouble, as a creditor, collecting receivables from distressed debtors and/or because it […]

CONSTRUCTION PROJECTS AND COVID-19: Three practical steps to protect your legal position and minimise future disputes

7 April 2020

All parties involved in construction projects – contractors, employers, subcontractors, and suppliers – should be mindful that their actions or inaction now could have a significant impact on their legal position once the COVID-19 crisis subsides. Magnanimous expressions of solidarity and understanding by contractual counterparties may be quickly forgotten when […]

MARGIN CALLS – HOW CAN INVESTORS PROTECT THEIR POSITION?

30 March 2020

Following the recent market shakedown amidst the Covid-19 pandemic, banks have been issuing margin calls to their counterparties. Who is affected? Broadly speaking, two types of investors: The first category are wealthy clients who have been investing in stock markets on a leveraged basis, through so-called Lombard loans, which are […]

Swiss Federal Corona State Aid Programs

30 March 2020

In March 2020, the Swiss Federal Council has ordered significant restrictions on all individuals and undertakings. For most undertakings, the restrictions have direct (e.g. closing orders) or indirect (e.g. travel restrictions) financial consequences. These restrictions pose existential challenges for many undertakings and self-employed individuals. In order to support the undertakings […]

SWISS STATE-SCHEME FOR EMPLOYER COMPENSATION AS A RESULT OF REDUCED WORK TIME (RWT) AND OTHER RELATED STATE AIDS IN THE TIME OF COVID-19

27 March 2020

On 16 March 2020, the Swiss federal government introduced stringent measures to protect the population against the spread of COVID-19. Naturally, these protective measures had profound consequences for businesses and their employees, and the Swiss federal government has been quick to respond with several initiatives designed to help businesses survive […]

CORONAVIRUS: A FORCE MAJEURE EVENT UNDER SWISS LAW?

5 March 2020

This article is available in French and in German. Introduction As the coronavirus epidemic continues to spread into Europe, businesses are trying to assess the impact on both their human resources and their commercial relationships with operators located in the most affected regions. The impact of this epidemic is all […]

New Iran-Related Sanctions – Their Likely Swiss Side Effects – The Swiss-Iranian Humanitarian Trade Arrangement

6 February 2020

Introduction Following Iran’s military offensive against U.S. bases in Iraq, and pursuant to U.S. President Donald Trump’s Executive Order 13902 “Imposing Sanctions With Respect to Additional Sectors of Iran” (the “Executive Order”) of January 10, 2020, the U.S. Department of the Treasury’s (the “Treasury”) Office of Foreign Assets Control (“OFAC”) […]

Game changer for Swiss trustees: new licensing obligation from 2020

7 January 2020

Introduction From 1 January 2020, the Swiss Financial Institutions Act (FinIA) and the Swiss Financial Services Act (FinSA) will become law and introduce a regulatory regime for trustees operating in Switzerland, obliging them to obtain an authorisation to carry out their activities. The new regime should reinforce the general reputation […]

Swiss Blocking Statute: update on do’s and don’ts under the threat of criminal sanctions

3 December 2019

Deposing witnesses, serving parties, or gathering evidence in Switzerland in support of foreign proceedings must all comply with the so-called “Swiss Blocking Statute” which aims to protect Swiss sovereignty over national soil for acts of public authority in particular by preventing the potential circumvention of applicable rules on international judicial […]

ICSID PUBLISHES NEW WORKING PAPER AND AIMS TO FINALISE RULE AMENDMENTS

15 October 2019

U.S. DISCOVERY MADE AVAILABLE FOR COMMERCIAL ARBITRATIONS OUTSIDE OF THE UNITED STATES – RISKS AND OPPORTUNITIES

15 October 2019

Until recently, U.S. courts have largely rejected discovery requests made in support of commercial arbitrations seated outside of the United States.  These requests would have enabled parties to these arbitrations to compel the production of documents and testimony from counterparties and third parties located within the United States.  However, the […]

Revision of Chapter 12 of the Swiss Private International Law Act (PILA): Setting the Ground for Trust Arbitration in Switzerland?

18 September 2019

This article appeared in the ILO’s Private Client and Offshore Services August Newsletter BACKGROUND While trusts have not been incorporated into the Swiss legal system, Switzerland ratified the Hague Trust Convention with effect from 1 July 2007 and adapted its conflict of laws provisions, in particular Articles 149a-149e of the Swiss […]

ART COLLECTORS ALERT – LANDMARK SUPREME COURT RULING ON RETURNING ARTWORKS ILLICITLY EXPORTED TO COUNTRY OF ORIGIN

16 September 2019

This article appeared in the ILO’s Private Client and Offshore Services August Newsletter Introduction Estimated at $67.4 billion, (1) the art market has become a global playing field for ultra-high-net-worth and high-net-worth individuals to invest their assets. Yet, lack of harmonisation of national legislations on the protection of cultural property […]

FROM PORT HARCOURT TO HAMBURG: THE SWITZERLAND V. NIGERIA DISPUTE

25 June 2019

On 21 May 2019, Switzerland filed a request for provisional measures with the International Tribunal for the Law of the Sea (the “Tribunal”) in support of arbitration proceedings recently initiated against Nigeria. While little information on the arbitration is known, the proceedings relating to the provisional measures are public and […]

TO STAY OR NOT TO STAY: ICSID proposals for amending the rule on stays of enforcement during annulment proceedings

17 June 2019

1. INTRODUCTION In August 2018, ICSID published the proposals for amendment of the ICSID Rules accompanied by a Working Paper (“Working Paper 1”) and distributed them to Member States. ICSID invited written comments, which have since been compiled and published in January 2019. Based on the comments received, ICSID updated […]

US monitorships: the Swiss perspective

24 May 2019

This article appeared in the IBA Litigation Committee’s May Newsletter Over the last decade, Switzerland has hosted several United States monitorships involving large international banks. With other countries adopting comparable enforcement mechanisms in cases of corporate wrongdoing, the number of foreign monitors conducting investigations in Switzerland could increase in the […]

Online payment services, money laundering and their new master: ISO Standard 20022

2 April 2019

Only available in German – Published in Lucerne University of Applied Sciences and Arts’ Economic Crime Blog   Der neue ISO Standard 20022 – Universal Financial Industry Message Scheme harmonisiert den globalen elektronischen Zahlungsverkehr und erschwert die Geldwäscherei. Im Zahlungsverkehr findet seit mehreren Jahren global eine kontinuierliche Verlagerung von papierbasierten […]

Update on retrocessions under Swiss law: risk of criminal liability for asset managers failing to report retrocessions to clients

4 December 2018

On 14 August 2018, the Swiss Supreme Court ruled that the concealment of retrocessions received by an asset manager may constitute criminal mismanagement pursuant to Art. 158(1) of the Swiss Criminal Code (“SCC”). [1] This decision is the latest of a series of landmark decisions issued by the Swiss Supreme Court […]

Whistleblowing: Federal Supreme Court ruling places Swiss banks’ offshore subsidiaries outside secrecy laws

23 November 2018

Interesting analysis by the International Bar Association of the Rudolf Elmer decision, featuring comments from a number of leading experts including Alexander Troller. Please read the full article here.

Swiss Courts dismiss foreign currency claims if the currency of the prayers for relief is wrongly denominated

9 October 2018

Swiss law is often chosen by foreign parties to govern their contractual agreements, mostly due to Switzerland’s stability and neutrality, its well-established case law and its highly liberal legal system which allows parties to shape contracts with little restriction. Nowadays, companies can easily open sub-accounts in different currencies to do […]

Banking fraud by hacking: the importance of not being idle when suing the bank

28 September 2018

In a recent decision the Swiss Supreme Court rejected a claim filed by a client following the execution of a fraudulent order on the grounds that the client failed to prove the hacking of its email account. In 2005, a holding company and its subsidiary (the “Client”) opened accounts with […]

ONLINE PAYMENT SERVICES – EU TECHNICAL STANDARDS ALREADY SET – SWITZERLAND IN REGULATORY LIMBO?

17 September 2018

Online payment service providers have increased their market share globally as an increasing number of payments are made utilising services such as PayPal, Alipay, Apple Pay and Samsung Pay. In the European Union, the Payment Services Directive 2 (PSD2) recently opened the payments market to third-party payment service providers offering […]

Investor Claims, Regulatory Enforcement and Criminal Proceedings within the frame of Initial Coin Offerings

15 August 2018

In 2017, the number of Initial Coin Offerings (ICOs)/token-generating events (TGEs) exploded in Switzerland, surpassing and disrupting traditional venture capital investment. Switzerland, and in particularly its renowned Crypto Valley, has emerged as a global hub for ICOs. Under current Swiss law, there is no specific investor protection around ICOs. ICO […]

Claim Submissions and Dispute Resolution under the New FIDIC Conditions of Contract

16 May 2018

In December 2017, the Federation Internationale des Ingénieurs-Conseils (FIDIC) introduced new editions of the Red Book (Conditions of Contract for Construction), Yellow Book (Conditions of Contract for Plant and Design Build) and Silver Book (Conditions of Contract for EPC/Turnkey Projects) (collectively the “Revised Conditions”), as updates to the editions originally […]

Replacement of the contractor: navigating the pitfalls between substitution, partial termination and variation

16 May 2018

It is frequent in complex construction projects that the contractor fails to complete certain separable construction tasks in accordance with the agreed schedule and that the employer therefore seeks to replace the laggard for those specific tasks, while continuing the cooperation for the remaining project works (be it because those […]

Protection of the environment in international courts: recent decisions open new avenues for mass claim processes

2 January 2018

Two significant jurisprudential developments published last month have shed light on important questions relating to the protection of the environment in international law. They are of particular interest to States, businesses and civil society groups since they open up a range of possibilities when it comes to assessing environmental damages […]