Companies and individuals are increasingly confronted with the challenge of navigating Swiss blocking statutes when trying to provide US enforcement authorities with materials based in Switzerland. Gibson Dunn & Crutcher's F. Joseph Warin, Jason H. Smith and Susanna G. Schuemann examine how practitioners can work with US authorities to address these situations.
When a foreign enforcement authority requests materials or information located in Switzerland, companies often face a challenging risk calculus: comply with the request at the risk of violating Swiss privacy laws and blocking statutes or jeopardise valuable cooperation credit. Although failure to cooperate with international enforcement authorities can result in stiff corporate penalties and the loss of cooperation credit and advantageous resolution vehicles, the prospect of violating Swiss law introduces its own set of problems. Sanctions for a violation of Switzerland's blocking statute can include both stiff monetary penalties and imprisonment of up to three years. The gravity of Switzerland's blocking statute first made waves in 1988, when a Swiss lawyer was imprisoned for 10 days after helping to draft meeting notes that he knew would be used in an Australian criminal proceeding. More recently, in 2017, Swiss authorities imposed a fine of 274,000 Swiss francs ($270,000) and a two-year probation on an in-house lawyer for providing information to the US Department of Justice (DOJ). In both cases, the Swiss Supreme Court concluded that the lawyers violated Switzerland's blocking statute.
Navigating the requirements of Swiss law and conflicting expectations from international enforcement authorities is therefore critical for any company contending with a crossborder investigation with Swiss touch points. It is critical to consult with experienced Swiss counsel to identify possible touchpoints with Swiss requirements and how to comply with them. Against this backdrop, we identify some of the more common roadblocks that can arise in an investigation involving Switzerland and how companies can best position themselves to address them.
International enforcement authorities incentivise fulsome investigations and disclosures
It is no secret that enforcement authorities in the United States and elsewhere expect robust internal investigations leading to candid disclosures of factual findings. Using a carrot-and-stick approach, companies that truncate an investigation (or fail to conduct one...