In the current issue of the journal Expert Focus Dr. Christoph D. Studer and Dr. Oliver Fritschi comment on the proposed amendment of the law concerning auditors' liability. Although auditors are rarely the main responsible if damages occur, they regularly have to pay the bulk of the compensation in liability proceedings. The majority of experts consider it inappropriate that the controlling body of a company thus becomes the de facto guarantor of default for insolvent board members. According to the authors, the revision project may be suitable for alleviating this problem.

Contact

• Christoph D. Studer, Dr. iur., LL.M.
• Oliver Fritschi, Dr. iur., LL.M.

On 25 June 2018 the Swiss national TV interviewed our sports lawyer Roy Levy on FIFA’s verdict to impose a fine on the Swiss football players Xhaka, Shaqiri and Lichtsteiner for showing the double-eagle during the World Cup match against Serbia.  

Contact

• Roy Levy, lic. iur., FIFA Master

Probst Partner AG was again awarded as top law firm in 2018 by the business magazine Bilanz and Le Temps. This award is given to law firms that are most recommended by competitors and clients in their respective fields. Probst Partner AG is one of the most recommended law firms in the field of public procurement. We thank our customers for this sign of trust and are very pleased about it.
 

The Swiss Financial Market Supervisory Authority (FINMA) recently issued a new guideline on the subject of Initial Coin Offerings (ICOs). This provides interested parties with advice on how to qualify ICOs in accordance with Swiss financial market regulation.

The number of new ICO projects has risen sharply in recent months. This is a form of financing for companies, typically start-ups, where investors transfer funds to an ICO organizer. In return, they receive blockchain-based "coins" or "tokens", which are either derived from a blockchain newly developed by the organizer or on an existing blockchain by means of a so-called "smart contract.

The parties to shareholders' agreements are often inclined to stipulate an indefinite period of time instead of implementing any termination options. Long-term contracts, however, usually are deemed invalid because of a prohibition of excessive self-commitment under Swiss law (article 27 para. 2 CC). This applies in particular if the contract restricts not only a party's economic sphere but also its personal freedom. Therefore, parties to shareholders' agreements should always stipulate termination modalities (if necessary combined with a long minimum term), as a recent judgment of the Federal Supreme Court shows.

The Swiss Federal Supreme Court has decided that secret surveillance is illegal in the area of the disability insurance due to the currently inadequate legal basis for such measures (decision 9C_806/2016 of 14 July 2017).

The decision is a change in the Federal Supreme Court's established practice, according to which an observation in the area of the disability insurance was generally permissible (based on Article 59 para. 5 Federal Act on Disability Insurance, see BGE 137 I 327, E. 5.2). The change in practice follows a decision rendered by the European Court of Human Rights in October 2016 which, in a similar case, found that the legal basis in the field of accident insurance is inadequate for an observation (ECHR judgment 61838/10). Secret surveillance in that area therefore amounts to a violation of the right to respect for an individual's private life protected by Article 8 of the European Convention of Human Rights.

On 1^st January 2017, in addition to the new "Swissness" legislation, a number of other trademark related revisions came into force. Besides other changes, the Swiss Federal Trade Mark Protection Act (TmPA) introduces a new administrative cancellation procedure, whereby anyone can request the cancellation of a trademark at the Swiss Federal Institute of Intellectual Property (IPI) on the grounds of non-use of said trademark (art. 35a-35c TmPA). No specific interest in cancelling the trademark needs to be demonstrated. Instead of long and costly proceedings before a court, this cancellation procedure offers a quick road to attack existing trademark registrations.

With its decision of 3.3.2016 the Swiss Federal Supreme Court held, that it is possible to register joint signatures with certain restrictions. The Commercial Register therefore must register not only which persons have joint signature but - if the company asks for it - also who can sign with whom and in what combination a signature is not valid.

Nevertheless a company or board of directors has to be careful about a signature-regime that is to complicated and has to be adopted to often. If the registered signatures are not up to date and persons without signature regularly sign for the company, it might be possible that they can conclude a legally binding contract for the company. If this damages the company the board of directors can be held personally liable.

• Contact

• Christoph D. Studer, Dr. iur., LL.M.