Comparative Guides
Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.
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Results: 4 Answers
Anti-Corruption & Bribery
3.
Corruption and bribery
3.1
How are gifts, hospitality and expenses treated in your jurisdiction?
 
Switzerland
See question 2.4

For more information about this answer please contact: Thomas A. Frick from Niederer Kraft Frey AG
3.2
How are facilitation payments treated in your jurisdiction?
 
Switzerland
Anybody who offers, promises or gives an undue advantage to a member of a Swiss judicial or other authority, a public official, an officially appointed expert, translator or interpreter, an arbitrator or a member of the armed forces in order that the person carries out his or her official duties is liable to a fine or imprisonment for up to three years under Article 322quinquies of the Swiss Criminal Code (SCC). Article 322sexies of the SCC sanctions the person accepting such a facilitation payment. Therefore, granting or accepting an advantage is punishable under Swiss law. Such undue behaviour is also called a ‘grease payment’ in colloquial language.

Facilitation payments offered to foreign public officials are not sanctioned under Swiss law, as they do not fall within the scope of the SCC.

For more information about this answer please contact: Thomas A. Frick from Niederer Kraft Frey AG
3.3
How is bribery through intermediaries and other third parties treated in your jurisdiction? Can those third parties be held liable?
 
Switzerland
The abovementioned articles of the SCC concerning bribery also address a third party as a possible beneficiary of the undue advantage, as long as the aim is to influence an individual to act in the way the offender wants. Hence, third parties can be held liable under criminal law, either directly or under the titles of incitement or complicity, as forms of participation in a crime.

For more information about this answer please contact: Thomas A. Frick from Niederer Kraft Frey AG
3.4
Can a company be held liable for bribery committed by management or other employees?
 
Switzerland
Yes, if the company has failed to take all reasonable organisational measures to prevent such crime or in case of inadequate organisation. See question 2.6.

For more information about this answer please contact: Thomas A. Frick from Niederer Kraft Frey AG
3.5
Can a company be held liable for bribery committed by domestic or foreign subsidiaries?
 
Switzerland
As a rule, only the individual who commits bribery is liable under criminal law; the criminal law liability of a company is an exception. Liability for bribery committed by a subsidiary is therefore unlikely, unless the prosecutors can prove that the parent entity was acting as a factual corporate body of the subsidiary, influencing its corporate decisions. Furthermore, action is ongoing to bring to vote a popular initiative in Switzerland called the Responsible Business Initiative. The initiators are demanding the introduction of an amendment to the Swiss Federal Constitution requiring that companies acting abroad observe human rights and environmental compliance. Should the initiative be accepted by Swiss voters, certain companies domiciled in Switzerland will be liable for damages caused by a subsidiary abroad, unless the respective company can evidence that it has taken all necessary measures to prevent the damage. This initiative is highly disputed among Swiss experts and it remains to be seen whether it will succeed.

For more information about this answer please contact: Thomas A. Frick from Niederer Kraft Frey AG
3.6
Post-merger or acquisition, can a successor company be held liable for bribery committed by legacy companies?
 
Switzerland
Article 102 of the SCC does not explicitly address this situation. As a rule, a company may be held liable only for a violation of the law within such company and by employees of that specific company. Hence, it is unlikely that, following an acquisition, the new parent will be held liable for the prior bribery offences of a new subsidiary.

In case of absorption, civil law liabilities are transferred by operation of law to the newly merged company, so it inherits civil liability. It is questionable, however, whether this would extend to criminal law liability and no precedents are known.

For more information about this answer please contact: Thomas A. Frick from Niederer Kraft Frey AG