Lenz & Staehelin updates

Broad jurisdiction for avoidance claims (actio pauliana) – also for Swiss defendants?
Lenz & Staehelin
  • Litigation
  • Switzerland
  • 01 October 2019

As a recent European Court of Justice opinion is likely to be adopted by Swiss legal doctrine and precedent, parties domiciled in Switzerland may be targeted by avoidance claims in another signatory state of the Lugano Convention based on a contract to which they were not a party but that was merely concluded between the debtor and a creditor.

ComCo reduces antitrust fines due to damages compensation paid to cartel victims
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 26 September 2019

The Competition Commission (ComCo) recently closed its investigations into bid rigging in the construction industry and issued fines of Sfr11 million, an amount which would have been much higher had the commission not deducted the damages compensation paid by the cartelists to the victims from its claims. By introducing the possibility of compensating cartel victims for damages in antitrust proceedings, ComCo has chosen to advocate civil antitrust law to the detriment of its leniency programme.

Linked ETSs to benefit energy-intensive industries
Lenz & Staehelin
  • Energy & Natural Resources
  • Switzerland
  • 09 September 2019

The CO2 Agreement between Switzerland and the European Union aims to link the Swiss and EU emissions trading systems (ETSs) to allow energy-intensive industries which currently participate in only the Swiss ETS to access the more dynamic EU emissions market. As under the current regime, the CO2 tax on fuels will be reimbursed to plant operators participating in the Swiss ETS at their request; however, a new exception applies to so-called 'fossil-fuel thermal power plants'.

Federal Administrative Court rules on abuse of dominant position
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 15 August 2019

The Federal Administrative Court recently upheld a Sfr7 million fine issued by the Swiss Competition Commission in 2010 against SIX Group regarding the processing of credit and debit card payments. This long-awaited decision dealt with numerous legal questions of relevance to dominance cases; however, it is not yet final, as an appeal is pending before the Federal Supreme Court.

Stricter language skill requirements for foreign nationals
Lenz & Staehelin
  • Immigration
  • Switzerland
  • 07 June 2019

The Foreign Nationals Act has been renamed the Foreign Nationals and Integration Act, with effect from 1 January 2019. The Foreign Nationals and Integration Act has revised the earlier provisions and introduced new ones to encourage and support foreign nationals' integration into Switzerland. Further, the act now includes provisions relating to the integration of non-EU nationals in Switzerland.

Secretariat of Competition Commission advises on merger filing obligation based on dominant market position
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 30 May 2019

Under the Cartel Act, a merger filing is generally required when the relevant turnover thresholds pursuant to Article 9(1) of the act are met. However, in addition to these thresholds, the act provides for a filing obligation based on a dominant market position. As a result of legal uncertainty, a leading media group recently asked the Secretariat of the Competition Commission whether its intended acquisition of a small media agency would trigger a merger filing obligation even if the turnover thresholds were clearly not met.

Redaction of personal data in reports published by Swiss Competition Commission
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 09 May 2019

The Federal Administrative Court (FAC) recently confirmed that the Swiss Competition Commission's decision to publish the contents of a preliminary investigation's final report must comply with the Federal Act on Data Protection and the Cartel Act. In the case at hand, the FAC held that the public interest in publishing largely prevailed over the private interest of an undertaking in maintaining its good reputation.

Federal Administrative Court rules on right to silence in competition investigations
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 14 March 2019

In a recent bid-rigging investigation, the Federal Administrative Court held that assessing the procedural role of a witness or company representative must be based on the circumstances at the time of the interrogation. The court found that interrogation of a witness is permissible only if it concerns purely factual information that could have no direct incriminating effect on the complainant with regard to a possible violation of competition law.

Post-Brexit free movement of persons between United Kingdom and Switzerland
Lenz & Staehelin
  • Immigration
  • Switzerland
  • 22 February 2019

In the event of a no-deal Brexit, British nationals who take up residence in Switzerland after 29 March 2019 would not benefit from any rights of protections currently granted under the Agreement on the Free Movement of Persons and would thus be considered non-EU nationals. Under Switzerland's ordinary immigration regime, non-EU nationals generally have no right to obtain a Swiss residence and work permit, and Swiss immigration authorities have wide discretionary power when reviewing permit applications.

Precautionary taking of evidence in support of current proceedings
Lenz & Staehelin
  • Litigation
  • Switzerland
  • 19 February 2019

Under the Civil Procedure Code, the Swiss courts usually take evidence only after the parties have fully pleaded all particulars. The taking of evidence is often preceded by multiple exchanges of written submissions; however, in certain cases, it may be unreasonable to wait until the proceedings have fully developed to take certain evidence. For such cases, Swiss law allows parties to request the so-called 'precautionary taking of evidence'. The Zurich Commercial Court recently issued a decision on one such request.

Secretariat of Swiss Competition Commission advises on changes in shareholder structure of joint venture
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 14 February 2019

The Secretariat of the Swiss Competition Commission recently issued advice in respect of Article 23(2) of the Cartel Act to two shareholders in a jointly controlled joint venture. The advice clarifies that joint control is given when the parent companies must agree on all important matters relating to the joint venture. Where several parent companies have unequal stakes in a company, minority shareholders must have a right to veto decisions that are essential to the strategic commercial behaviour of the joint venture.

Forum running through action for negative declaratory judgment now admissible in Switzerland
Lenz & Staehelin
  • Litigation
  • Switzerland
  • 05 June 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
  • 15 August 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
  • 13 December 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
  • 29 November 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
  • 31 March 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
  • 21 October 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
  • 25 February 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
  • 07 May 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
  • 11 September 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.

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