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
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.
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.
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, […]
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.
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 […]
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 […]
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.
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.
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.
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.
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.
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 […]
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.
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 […]
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 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
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 […]
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.
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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.
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 […]
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 […]
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 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.
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 […]
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.
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 […]
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.
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.
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.
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.
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 […]
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. […]
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. […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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. […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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. […]
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 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, […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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”) […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 […]
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 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 […]
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 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 […]
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 […]
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 […]
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 […]
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 […]