SWITZERLAND Trends and Developments Contributed by: Marc Hassberger and Jeffrey Connor, Chabrier Avocats LLC
Corporate Criminal Liability: What “Adequate Organisation” Now Means for Swiss Traders Introduction – Switzerland’s new enforcement reality For many years, Switzerland’s corporate criminal liability regime was regarded as largely under-used. Introduced in 2003 through Article 102 of the Swiss Criminal Code (SCC), the provision allowed for corpo - rate responsibility when offences occurred because of organisational failings, but in practice it was rare - ly invoked. For more than a decade, enforcement focused almost only on individuals, and Article 102 of the SCC served mainly to align Switzerland with OECD anti-bribery and Financial Action Task Force (FATF) standards. There were a few early applications, but these remained exceptions rather than a trend. That picture has changed markedly in recent years. Since 2019, a sequence of landmark cases has trans - formed Switzerland into an active jurisdiction for cor - porate enforcement. The Office of the Attorney General (OAG) and, more recently, the Federal Criminal Court have applied Article 102 of the SCC against some of the country’s largest commodity trading houses, imposing significant financial measures and detailed findings on organisational adequacy. Among others, Gunvor (Switzerland-based), Glencore (Switzerland- based) and Trafigura (Singapore-headquartered, with major Swiss operations) have faced corporate convic - tions for bribery-related offences. These proceedings demonstrate that Swiss prosecutors are now willing (and have the capacity) to investigate and prosecute multinational firms operating in one of the Swiss econ - omy’s primary sectors. The message for trading groups with presence in Switzerland is clear. Swiss authorities will investigate suspected offences and impose corporate liability even where no individual’s knowledge or intent can be proven, provided the company’s organisation is judged insufficient to prevent misconduct. In Glencore’s 2024 case, for instance, the OAG expressly stated that liability arose despite the absence of any proven employee awareness of brib - ery. Although Article 102 of the SCC caps fines at CHF5 million, criminal authorities have coupled those fines with substantial compensation orders that
remove profits gained through the offences. In recent resolutions, compensation orders have ranged from roughly CHF82 million to USD145–150 million, far exceeding the fine cap. For boards and compliance officers, Article 102 of the SCC has ceased to be an abstract or symbolic risk. It now functions as a concrete design mandate for inter - nal governance. Swiss enforcement practice shows that “adequate organisation” is no longer a theoretical concept but a measurable standard that prosecutors and courts are willing to test in real cases. Compa - nies operating from Switzerland must therefore treat compliance architecture not as a defensive formality but as an essential condition of their operations in order to make sure that they do not breach the law and face a potential conviction in what has become an increasingly assertive and internationally co-ordinated enforcement environment. Article 102 of the SCC – legal framework and evolution Article 102 of the SCC entered into force on 1 October 2003, as part of Switzerland’s alignment with interna - tional anti-corruption standards under the OECD Anti- Bribery Convention and broader FATF expectations. Before then, Swiss criminal law recognised only the liability of natural persons; corporations themselves could not be convicted, even if they benefited from corrupt conduct. They could, however, still be sub - ject to asset confiscation or compensation orders. The 2003 reform filled that gap by creating corporate crim - inal liability grounded in organisational responsibility. The provision establishes two distinct pathways. Under Article 102 (2) of the SCC, for certain enumer - ated offences, including bribery of foreign public offi - cials, a company is primarily liable if it failed to take all necessary and reasonable organisational measures to prevent the offence, regardless of whether an indi - vidual is identified or convicted. The statutory list in paragraph 2 captures key corruption and financial- crime provisions. Under Article 102 (1) of the SCC, a company faces subsidiary/alternative liability where an offence has occurred within the business but can - not be attributed to any specific natural person due to organisational deficiencies within the company. The
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