SWITZERLAND Law and Practice Contributed by: Philippe Reich, Meera Rolaz, Kaspar Projer, Samantha Salsench and Anna Zellweger, Baker McKenzie Switzerland AG
it has any margin of appreciation in implementing them, held that sanctions, including the names of those affected by them which are also notified to UN member states, afford UN member states no margin of appreciation in their implementation. For obtaining deletion from a sanctions list, the relevant sanctions committee provides a specific procedure, so that UN member states are debarred from deciding on their own on the delisting; thus Switzerland would be in breach of its obligations under the UN Charter were it to delete the names of a UN designated person from the annex of the relevant ordinance (see paragraph 50 of judgment of 12 September 2012, ECHR, Grand Chamber, case of Nada v Switzerland ). Effects of Delisting In cases where a delisting occurs, the corresponding restrictive measure is no longer applicable. However, in practice, most companies typically take a global approach when considering whether individu - als or entities are designated. Thus, a delisting should be obtained in all jurisdictions in which the individual or entity has been designated. 4.3 Timing It is difficult to predict the time it might take to obtain delisting for the reasons set forth in 4.1 Process and 4.2 Remedies , but it can take between months to years, also given Swiss listings originate either with the UN or the EU. 5. Trade and Export Restrictions 5.1 Services As mentioned in 1.4.1 Types of Sanctions , sanctions can take a number of different forms, including restric - tions on the export and import of certain services to sanctioned countries. The most striking example is where Switzerland aligned with the EU in implementing a stand-alone ban on the provision of certain services or software to Russia. Article 28e of the Ukraine Ordinance prohibits, inter alia, the direct or indirect provision of services such as business and management consulting, legal advisory and IT consultancy services, or of certain
business software to the Government of Russia or legal persons, entities or bodies established in Russia. Moreover, there are bans on ancillary services of any kind which are related to the trade of restricted goods under the Ukraine Ordinance. In the case of other sanctions regimes (eg, Iran, Syria and North Korea), the ban on the provision of ser - vices is related to the underlying restriction on cer - tain goods. Service providers should conduct regu - lar assessments to ascertain whether the underlying goods that they are providing services for are subject to restrictions under the applicable sanctions laws. 5.2 Goods Most sanctions regimes impose restrictions on the trade of certain goods, namely military and dual-use goods. For example, the restrictive measures against Iran include a ban on the sale, supply, export, etc, of goods for nuclear items or drones to Iranian persons or organisations or for use in Iran. Furthermore, there are bans on the export of arms, repressive equipment and equipment for surveillance purposes which tradi - tionally form part of every sanctions regime. Under the Russia sanctions regime, the scope of these bans is considerably broader, extending beyond goods that may be used for military purposes to encompass those that could potentially enhance Rus - sia’s economy. Such measures include export bans on luxury goods, goods destined to strengthen Russia’s industry as well as an import ban on goods that gen - erate significant revenue for Russia. These export or import restrictions include a wide array of goods such as also coal, iron and steel as well as other (otherwise common) goods. 6. Civil Litigation and Arbitration 6.1 Force Majeure The case law of the Swiss Federal Supreme Court on the question of impossibility of performance due to compliance with sanctions is scarce. Worth mention - ing, however, are the following three decisions.
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