SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
as a criminal offence that punishes the breach of secrecy by the bank or one of its employees towards its client. The client of the bank is the beneficiary of the secret, which can be opposed to the bank as their counterparty. In turn, the bank cannot reveal to third parties the existence of the contractual relationship with their client. Banking secrecy cannot be opposed in criminal and insolvency proceedings. In civil proceedings (including in mutual assistance), banking secre - cy qualifies as “other legally protected secrets” , far behind the professional secrecy of lawyers, priests or doctors. Banking secrecy does not grant any privileged right to refuse to collaborate before courts and authorities. It is only an exception to the duty to collaborate of third parties holding information. Swiss banks may still resist a request for col - lection of banking information by arguing that the interest in keeping the secret outweighs the interest in finding the truth in the trial. 7.3 Crypto-Assets There is no definition of the terms crypto-assets or cryptocurrencies in Swiss law and the legal treatment of these assets will depend on each area of law. In general terms, crypto-assets are treated as property but, like for any other types of assets, the way they can be frozen, seized or forfeited will depend on the type of holding over them. In criminal proceedings in particular, the Swiss Federal Court has ruled that the immediate liq- uidation of seized crypto-assets and their con - version into Swiss francs in view of forfeiture infringed the legal provisions of the SCPP. In spite of the high volatility of this type of assets, law enforcement authorities must seek the advice of experts to proceed to the appropriate
liquidation of crypto-assets, as they have a duty of care over the managed seized assets. In February 2021, the Federal Act on Adaptation of Federal Law to Developments in Distributed Ledger Technology (DLT) entered into force. Among others, bankruptcy, anti-money-launder - ing and financial market laws were amended to take into consideration the increase of the devel - opment of blockchain and DLT technologies. Article 242a DCBA has been included in bank - ruptcy law under a new section “Restitution of crypto-assets” . It provides that the bankruptcy office holder decides on the restitution of crypto- assets, of which the debtor had the power to dispose at the opening of the bankruptcy and that are claimed by a third party. The claim is justified if the debtor has undertaken to keep the crypto-assets at the disposal of the third party at all times and if the crypto-assets are individually attributed to the third party or are attributed to a community and the third party’s share is clearly determined. This legal provision only targets the bankruptcy of a custodian company and aims at the restitution of their assets to the clients. Subject to these legal requirements, these cli - ents therefore have a property claim that ben - efits from a priority over the ordinary creditors, who only dispose of a claim against the bankrupt estate. With respect to the financial markets laws, plat - forms based on DLT have been included in the definition of financial market infrastructures (Article 2 littera a, 5a of the Financial Market Infrastructures Act, FinMIA). As a consequence, financial crimes can now also be committed on these types of platforms. The federal Act on Money Laundering (AML) was also amended to include DLT-based plat -
354 CHAMBERS.COM
Powered by FlippingBook