SWITZERLAND Trends and Developments Contributed by: Paul Gully-Hart, Schellenberg Wittmer Ltd
which may have adverse collateral consequenc - es. Rather than facing the legal and reputational risks associated with a conviction, a number of companies will refrain from self-reporting poten - tial wrongdoing. Thus, the prospect of a negoti - ated resolution of criminal charges that avoid the stigma of conviction is likely to incentivise self- reporting, co-operation with law enforcement as well as the upgrading of corporate governance and compliance programmes. A further benefit of a DPA is the monitoring by independent pro - fessionals of the company’s business activities over a specified period of time. The chances of introducing DPAs into Swiss law will increase if due provision is made for an adequate court’s supervision in order to address public interest concerns that companies may be paying sums of money to obtain immunity from prosecution. Judicial control should ensure that a court will carefully review whether the agree - ment reached between the defendant company and the prosecuting authority is appropriate in light of all the circumstances of the case which may include the seriousness of the underlying offence, the level of co-operation given by the company, the effective improvement of its inter - nal organisation, the adequacy of the monitoring process as well as the disgorgement of ill-gotten benefits in the form of a confiscation order or of a compensatory claim.
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