SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
6.2 Undermining the Privilege Over Communications Exempt From Discovery or Disclosure Client-attorney privilege is protected in both civil and criminal proceedings, and extends to com - munications between lawyers and their clients, as well as documents collected or created within the performance of their mandate and within the scope of the typical activity of lawyers (represen - tation before courts and advisory in legal mat - ters). A lawyer may always refuse to collaborate even if they are released from client-attorney privilege, provided that it serves the mere inter - ests of the client. A lawyer cannot invoke client-attorney privilege to protect their own interests. The creation of documents 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 col - laborate, including the right to refuse to provide communications with their lawyers (Article 160 paragraph 1, littera b SCCP) and the right of law - yers 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 paragraph 1, litterae a and d SCPP, the follow - ing 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 communica - tions between another person and their lawyer provided the lawyer is entitled to rep - resent clients before Swiss courts in accord - ance with the Lawyers Federal 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 suffering 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 communications between a third party to the criminal proceedings and their US attorney- at-law, since the legal privilege given to com - munications between a lawyer and third parties only extends, in summary, to Swiss and EU or EFTA lawyers. Switzerland being a civil law country, punitive damages are, in principle, contrary to substan - tive public policy and punitive damages cannot be claimed under Swiss law. However, damages based on a penalty clause agreed by the defend - ant can be claimed, as long as they remain pro - portionate. It is debated whether punitive damages adjudi - cated by foreign courts or arbitral tribunals can be enforced. The mere fact that a foreign deci - sion grants punitive damages does not suffice to conclude that it is contrary to procedural public policy. Where the amount of the claim appears disproportionate, partial enforcement 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 7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages
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