SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
between lawyers and their clients, as well as docu - ments collected or created within the performance of their mandate and within the scope of the typical activity of lawyers (representation before courts and advisory in legal matters). A lawyer may always refuse to collaborate even if they are released from client- attorney privilege, provided that it serves the mere interests of the client. A lawyer cannot invoke client-attorney privilege to protect their own interests. The creation of docu - ments for the purpose of committing, or assisting in the commission of, a criminal offence is, obviously, not a typical activity. In civil proceedings, parties and/or third parties will therefore have the right to refuse to collaborate, including the right to refuse to provide communica - tions with their lawyers (Article 160, paragraph 1, lit - tera b, SCCP) and the right of lawyers to invoke their professional secrecy (Articles 163, paragraph 1, littera b and 166, paragraph 1, littera b, SCCP). In criminal proceedings, pursuant to Article 264, para - graph 1, litterae a and d, SCPP, the following items may not be seized irrespective of their location and when they were created: • documents used in communications between the accused and their defence lawyer; and • items and documents used in communications between another person and their lawyer provided the lawyer is entitled to represent clients before Swiss courts in accordance with the Lawyers Fed - eral Act and is not accused of an offence relating to the same case. This does not apply to items and assets that must be seized with a view to their return to the person suf - fering harm or their forfeiture (Article 164, paragraph 2, SCPP). In a landmark decision (BGE 147 V 385), the Swiss Federal Court ruled that prosecutors can seize com - munications between a third party to the criminal pro - ceedings and their US attorney-at-law, since the legal privilege given to communications between a lawyer
and third parties only extends, in summary, to Swiss and EU or EFTA lawyers.
7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages Switzerland being a civil law country, punitive dam - ages are, in principle, contrary to substantive public policy and punitive damages cannot be claimed under Swiss law. However, damages based on a penalty clause agreed by the defendant can be claimed, as long as they remain proportionate. It is debated whether punitive damages adjudicated by foreign courts or arbitral tribunals can be enforced. The mere fact that a foreign decision grants punitive damages does not suffice to conclude that it is con - trary to procedural public policy. Where the amount of the claim appears disproportionate, partial enforce - ment remains possible. 7.2 Laws to Protect “Banking Secrecy” Swiss banking secrecy is provided for in Article 47 of the Federal Banking Act. It is conceived as a crimi - nal offence that punishes the breach of secrecy by the bank or one of its employees towards its client. The client of the bank is the beneficiary of the secret, which can be opposed to the bank as their counter - party. In turn, the bank cannot reveal to third parties the existence of the contractual relationship with their client. Banking secrecy cannot be opposed in criminal and insolvency proceedings. In civil proceedings (includ - ing in mutual assistance), banking secrecy qualifies as “other legally protected secrets”, far behind the professional secrecy of lawyers, priests or doctors. Banking secrecy does not grant any privileged right to refuse to collaborate before courts and authorities. It is only an exception to the duty to collaborate of third parties holding information. Swiss banks may still resist a request for collection of banking informa - tion by arguing that the interest in keeping the secret outweighs the interest in finding the truth in the trial.
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