SWITZERLAND Law and Practice Contributed by: Philippe Reich, Meera Rolaz, Kaspar Projer, Samantha Salsench and Anna Zellweger, Baker McKenzie Switzerland AG
1.4.2 Scope of Sanctions Territorial Scope of Swiss Sanctions
tions ordinances currently in force in Switzerland, as follows. • Swiss sanctions regimes that solely implement sanctions imposed by UN Security Council resolu - tions: measures against persons and organisations with links to ISIL (Da’esh) and Al-Qaeda or the Taliban; measures relating to certain persons in connection with the assassination of Rafik Hariri; North Korea; Iraq; Lebanon; Somalia; Central Afri - can Republic; Yemen; and Haiti. • Swiss sanctions regimes that implement in full or partially sanctions adopted by the EU (separately from UN sanctions): Russia; Belarus; Syria; Myan - mar; Zimbabwe; Guinea; Burundi; Venezuela; Nica - ragua; Moldova; Guatemala; and measures against individuals and organisations that support Hamas or the Palestinian Islamic Jihad. • Swiss sanctions regimes that implement both sanctions imposed by UN Security Council resolu - tions and in full or partially additional measures adopted by the EU: Iran; Sudan; Democratic Republic of Congo; Libya; Guinea-Bissau; and South Sudan. On an Automatic or Case-by-Case Basis Non-military coercive measures (ie, economic sanc - tions) imposed by the UN Security Council to “main - tain or restore international peace and security” under Article 41 of the UN Charter are binding for all UN member states according to Article 25 of the UN Char - ter. Consequently, Switzerland automatically imple - ments UN sanctions through sanctions ordinances and automatically implements and updates UN des - ignated party lists. This contrasts with military sanctions that the UN Security Council can impose under Article 42 of the UN Charter. In this case, there is no automatic imple - mentation, given that the UN Security Council must conclude a special agreement with the UN member states in each case according to Article 43 paragraph 1 of the UN Charter. There is no automatic implementation of EU sanc - tions. Under Article 1 paragraph 1 EmbA, the Federal Council decides on a case-by-case basis whether and to what extent Switzerland implements sanctions
The EmbA and the ordinances establishing coercive measures do not expressly regulate the territorial scope of application of Swiss sanctions. However, it is the established understanding in law (also in light of so-far failed attempts to introduce the so-called per - sonality principle applicable to EU and UK sanctions) and practice that the so-called territoriality principle applies to Swiss sanctions. Accordingly, Swiss sanctions are in principle appli - cable to actions that occur on Swiss territory or to conduct carried out on Swiss territory. Therefore, Swiss sanctions apply to and must be complied with by (i) all natural or legal persons that are resident or domiciled in Switzerland, (ii) all natural persons who are present on Swiss territory (regardless of national - ity), (iii) all natural or legal persons, wherever located, that carry out business activities in Switzerland, from Switzerland or with effect in Switzerland, and (iv) all natural or legal persons if and to the extent they are ultimately directed or instructed out of Switzerland. Consequently, foreign group companies of Swiss parent companies, no matter in which legal form (ie, branches or even subsidiaries), may be subject to Swiss sanctions jurisdiction if they are not legally and operationally independent from the latter. The same applies to Swiss nationals acting outside Switzerland for and on behalf of their Swiss employer – ie, a Swiss- based company. 1.4.3 Domestic and/or Supranational Measures National Character of Swiss Sanctions The EmbA does not provide any legal basis for Swit - zerland to impose unilateral sanctions. In accordance with Article 1 paragraph 1 of the EmbA, “[t]he Con - federation may enact compulsory measures in order to implement sanctions that have been imposed by the United Nations Organisation, by the Organisation for Security and Cooperation in Europe or by Swit - zerland’s most significant trading partners and which serve to secure compliance with international law, and in particular the respect of human rights.” Implementation of UN and EU Sanctions The Federal Council has implemented mandatorily UN and voluntarily certain EU sanctions in the 28 sanc -
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