Under Swiss criminal law, criminal offences committed within a corporation during the course of its commercial activities may result in the corporation's direct criminal liability if the offence cannot be allocated to a specific individual within the corporation due to the corporation's deficient organisation. The Office of the Attorney General recently convicted a commodity trader of failing to take all due organisational measures to prevent corruption by its employees and agents and fined it Sfr94 million.
The Federal Supreme Court recently ruled that a Swiss-based asset management company's disclosure of client information to US authorities with a view to facilitating the conclusion of a non-prosecution agreement violated Article 271 of the Criminal Code. The decision reiterates that the court does not look favourably on persons who take matters into their own hands and bypass the competent Swiss authorities in furtherance of foreign state interests.
The inadequacy of whistleblower protection in Switzerland has been widely criticised for years. Despite the legislation on public sector whistleblowing which was introduced in 2011, there is no concise legal framework specifically addressing respective issues in the private sector. To fill the gap, the Federal Counsel recently proposed a leaner and more understandable piece of legislation, which will be introduced into the section governing employment contracts in the Code of Obligations.
The Federal Tribunal recently confirmed an asset manager's conviction of criminal mismanagement under Article 158 of the Swiss Criminal Code for failing to disclose retrocessions received from a custodian bank. This is the first time that the tribunal has ruled on the controversial issue of whether the failure of an asset manager to render accounts on retrocessions and similar rewards paid by third parties in connection with the asset manager's performance of their mandate would qualify as criminal mismanagement.
The Federal Council recently initiated the consultation on a number of amendments to the Anti-money Laundering Act. The consultation draft marks the third bundle of legislative measures to comprehensively implement the recommendations of the Financial Action Task Force in its latest mutual evaluation report on Switzerland. However, the proposed extension of the act's scope to include advisers marks a significant and highly problematic step.