SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
Monfrini Bitton Klein and Ardenter Law Monfrini Bitton Klein Place du Molard 3 1204 Geneva Switzerland
Tel: +41 223 102 266 Email: mail@mbk.law Web: mbk.law/en
Ardenter Law Rue Verdaine 6 1204 Geneva Switzerland +41 223 192 120 info@artenterlaw.ch www.ardenterlaw.ch/?lang=en Tel: +41 223 192 120 Email: info@artenterlaw.ch Web: www.ardenterlaw.ch/?lang=en
1. Fraud Claims 1.1 General Characteristics of Fraud Claims Switzerland being a civil law jurisdiction, civil remedies often need to be supported by criminal remedies. The institution of criminal proceedings enables the victims of fraud participating as plaintiffs to request that the law enforcement authorities issue broad freezing and disclosure orders from defendants and third par - ties holding assets or information (see 2.5 Criminal Redress ). “Fraud” has a narrower meaning under Swiss law than the general term “civil fraud” of common law and refers to notions of criminal law rather than of private law. For the purpose of this article, the term “fraud” is defined broadly to include, in particular but not limited to, the following felonies of Swiss criminal law: embezzlement, fraud, criminal mismanagement, money laundering, felonies committed in bankruptcy, forgery, conspiracy, corruption and bribery. The main civil remedy available for fraud claims is the liability in torts provided for by Article 41 of the Swiss Code of Obligations (SCO). Tort liability is given when the claimant proves that the defendant committed an
unlawful act. In addition to deceit (Article 28, SCO) and infringement of absolute rights such as property, tort liability will be given in cases of criminal offences when the goal of these offences is to protect assets or interests that were harmed. Liability in torts may also concur with liability for breach of contract (Article 97, SCO) or unjust enrich - ment (Article 62, SCO), in particular where they are combined with motives of impossibility (Article 20, SCO), unfair advantage (Article 21, SCO), misrepre - sentation (Article 23, SCO) or duress (Article 29, SCO). 1.2 Causes of Action After Receipt of a Bribe There are no specific causes of action available in Switzerland to a claimant whose agent has received a bribe and general rules on liability for damages will apply subject to the agent’s narrower duty to surren - der anything received in consequence of the agency, including bribes received (BGE 143 III 348, consid. 5.1.2). It is also worth mentioning that an agreement entered into through the payment of a bribe is not, by that very fact, illegal or immoral. A contract obtained by bribing a civil servant is void only if the reprehensible
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