Disclosure Of Bank Details: Who Has The Right To Object?

Author:Mr Urs Feller and Marcel Frey
Profession:Prager Dreifuss

Until recently, the question, who is entitled to appeal against a cantonal judgment granting international judicial assis­tance in civil matters was unclear since Swiss cantons did not follow a uniform practice. This could lead to instances where account holders in some cantons could raise an objection about the disclosure of their bank information to overseas courts while those in others could not. This had led to significant legal uncertainty.

Matters of fact

In a noteworthy decision rendered on December 21, 2015, the Swiss Federal Tribunal (SFT) clarified its position regarding the issue of legal standing (case reference 4A_340/2015). The underlying case concerned a commer­cial dispute in Spain. The Spanish court requested the Swiss authorities to provide judicial assistance based on the Hague Convention of 18 March 1970. The object of the judicial assistance request were transaction details of an account held at a Geneva bank. Neither the account holder nor the beneficial owner had been granted the right to be heard in the Spanish civil proceedings. Both, therefore, opposed the disclosure of the relevant details to the Spanish author­ities in the Swiss proceedings. Both lower courts granted the judicial assistance; the SFT, however, repudiated the Spanish judicial assistance request.

Swiss Federal Tribunal judgment

  1. Standing

    The significance of the SFT's decision is its conclusion relating to the issue of standing. The court held that parties involved in foreign civil proceedings may file an objection against a decision to execute the judicial assistance. In addition, any individual or legal entity subject to the judicial assistance request itself may file an objection in case it has a privilege or duty to refuse to give the evidence. Furthermore, third parties also have standing if the decision affects their rights. In consequence, this means that all persons affected by a decision in judicial assistance proceedings are entitled to file an appeal, i.e. the Swiss bank as a direct addressee but also the account holder or the beneficial owner as third parties.

  2. Fair hearing

    Based on this finding, the court followed to analyse whether the preconditions for a refusal to grant judicial assistance were met. The SFT held that the execution of a judicial assistance request, which did not respect the basic principles of Swiss civil procedural law, could be seen to prejudice the sovereignty and security of Switzerland. In the case at hand, the...

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