SWITZERLAND Trends and Developments Contributed by: Marc Hassberger and Jeffrey Connor, Chabrier Avocats LLC
contractual clarity, documentation standards, and escalation procedures risk being measured against a higher, more current benchmark – and failing it under Article 102 of the SCC. Prosecutorial strategy and defence implications Swiss prosecutors have relied increasingly on Arti - cle 102 of the SCC because it addresses a structural difficulty in corporate crime enforcement: in large, decentralised organisations, identifying and proving an individual’s criminal intent can be extremely hard. Commodity trading companies, with diffuse manage - ment structures and complex agent networks, are classic examples. Article 102 of the SCC allows pros - ecutors to focus on whether the company’s organi - sation was adequate to prevent the offence, rather than on who personally authorised an unlawful pay - ment. This approach is consistent with the structure of Article 102 of the SCC and is reflected in recent OAG orders (Gunvor 2019; and Glencore 2024), where prosecutors highlighted that internal structural weak - nesses were decisive for liability, rather than individual guilt. In practice, most Swiss corporate cases are con - cluded through summary penalty orders ( Strafbefehl ) under the Swiss Criminal Procedure Code. When a company does not contest the factual findings, the OAG can issue a written penal order imposing a fine and any compensatory measures without a full trial. These orders are public and final once accepted, and they create binding corporate convictions. For com - panies, the process offers efficiency and closure while limiting reputational damage, since the OAG publishes only the essentials of each order. Gunvor 2019 , Gun- vor 2024 and Glencore 2024 cases all followed this route, demonstrating how the summary-order mecha - nism has become the OAG’s preferred enforcement tool in complex cross-border bribery matters. The Trafigura case illustrates that trials are used selec - tively, when the companies/persons indicted are not willing to recognise culpability and/or prosecutors seek to test contested issues or to create jurispru - dence. On 31 January 2025, the Federal Criminal Court in Bellinzona issued the first reasoned corporate bribery judgment against a global trading company, confirming Trafigura’s liability and imposing a CHF3
million fine plus approximately USD145.6 million in compensation. The decision (currently under appeal) provides a concrete judicial articulation of the organi - sational-adequacy test and the evidentiary standards for proving corporate fault. From now on, companies have clearer guidance on how Swiss courts interpret Article 102 of the SCC: the Federal Criminal Court has supplied an explicit benchmark. Comparative experience helps contextualise Switzer - land’s model. In the UK, Section 7 of the Bribery Act 2010 creates a “failure to prevent bribery” offence that mirrors the logic of Article 102 of the SCC: corporate liability arises from deficient preventive systems, not from direct intent. The crucial procedural difference is that the UK regime allows resolution through Deferred Prosecution Agreements (DPAs), giving companies an incentive to self-report and co-operate. Switzerland has no equivalent instrument (the OAG has called for additional instruments), so its prosecutors rely on the summary-order mechanism instead. In the US, corporate liability under the FCPA follows the doctrine of respondeat superior, under which companies are vicariously liable for employees’ acts performed within the scope of employment, regard - less of compliance quality. In theory, Article 102 of the SCC is narrower because prosecutors must establish organisational failings. In practice, however, Swiss authorities have interpreted “adequate organisation” strictly, and the financial consequences (through the compensatory order) can rival US penalties. Compared with other civil-law systems, Switzerland sits in a middle position. France’s Sapin II introduced both compliance duties and a DPA-like mechanism – the Convention judiciaire d’intérêt public (CJIP) – while Germany relies on administrative sanctions and corporate fines under the Gesetz über Ordnungswidri- gkeiten (OWiG). Through its recent cases, Switzerland has moved closer to the UK model of fault based on inadequate preventive organisation, while maintaining its own procedural architecture under Article 102 of the SCC and the Strafbefehl framework.
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