SWITZERLAND Law and Practice Contributed by: Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
Odebrecht/CNO Case In a summary punishment order of 21 December 2016, the OAG convicted the Brazilian company Odebrecht SA and its subsidiary Construtora Norberto Odebrecht SA (CNO) for not having taken all reasonable and necessary organisa - tional measures to prevent bribery and money laundering in connection with the Petrobras affair. The conviction, which took the form of a summary punishment order, is part of a co-ordi - nated conclusion of the proceedings that was initiated by Switzerland but also involved Brazil and the USA. Odebrecht and CNO were held jointly and sever - ally liable by the OAG to pay CHF117 million to Switzerland in an equivalent claim; the subsidi - ary was sentenced to a fine of CHF4.5 million and the parent company Odebrecht SA to a fine of CHF0. The reason for imposing a penalty of zero francs on the parent company in this case was that the company had already been fined USD1 billion for bribery in the USA. This prompt - ed the OAG to waive punishment on the basis of Article 49, paragraph 2 of the SCC. The company Braskem SA had also paid bribes via the same channels as Odebre - cht SA and CNO. Proceedings in Switzerland against Braskem SA have been abandoned, as the company is being held accountable in the USA. However, the Swiss decision to abandon the proceedings involved the company paying compensation of CHF94.5 million in Switzerland. Altogether, the claims against the companies ‒ which were based in Brazil on civil proceedings, in the USA on a guilty plea and in Switzerland on the summary penalty order ‒ amounted to around USD2 billion.
former executive’s breach of his duty of due dili - gence had caused damage to the company. The former executive was sentenced to three years’ custody. Some of his assets were con - fiscated and he was ordered to pay damages amounting to CHF12 million plus interest to the Canadian company, which passed this amount on to Switzerland. Construction 2 Case A businessman belonging to an eminent North African family had acted as intermediary in a corruption case in Libya involving a Canadian engineering group (see Construction 1 Case). He was convicted by the OAG of complicity in the bribery of foreign public officials in a summary punishment order dated 22 March 2016 and giv - en a suspended pecuniary day-fine of 150 days at CHF2,500 (ie, a total of CHF375,000). Assets in the amount of CHF425,264 were confiscated. Port Infrastructure Case In four summary punishment orders of 1 May 2017, the OAG convicted a Belgian compa - ny and its subsidiary, who were specialists in port infrastructure development, for failure to take reasonable and necessary organisational measures to prevent bribes to foreign public officials (Article 102, paragraph 2 of the SCC). The investigation revealed a financial set-up whereby the Belgian subsidiary and two indi - viduals paid funds to public officials in Nigeria – in part through companies whose beneficiar - ies were politically exposed persons (PEPs). These payments were moved through three let - terbox companies domiciled in the British Virgin Islands. More than CHF20 million was allegedly paid in bribes between 2005 and 2013. The sub - sidiary was fined CHF1 million and had to make a compensation payment of CHF36.7 million. The parent company was fined CHF1.
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