Suchergebnisse für droit de se taire

Exception de l’entreprise défaillante: une résurgence en temps de crise?

The Failing Company Defence is a merger control law defence which enables the merging parties to avoid the prohibition that would normally apply to their merger by relying on the failure of one of them, i.e. the fact that one of the merging firms would exit the market if the merger was prohibited. Competition authorities generally require the fulfilment of restrictive conditions and hence rarely…

L’application du droit des marchés publics à l’approvisionnement en électricité

In March 2021, the Competition Commission issued a recommendation pertaining to the application of public procurement law and the Federal Internal Market Act to the procurement of electricity. The purpose of this recommendation was to examine in which cases the purchase of electricity must be subject to public tenders; it clarified that public procurement law may apply in several instances to…

Sustainable Purpose-Driven Enterprises

Social enterprises (in a broad sense), including those launched by social (or sustainable) entrepreneurs (or Sustainable Purpose-Driven Entities) are important players to achieve the Sustainable Development Goals (SDGs). Developing a legal framework that allows them to prosper has been a priority of the European Commission since 2010. These entities have recently been endorsed by the United…

Clauses de modification unilatérale des conditions générales des banques

The use of General Terms and Conditions (GTC) is essential for the rational management of banking business – to the benefit of both banks and their customers. Over the often lengthy duration of a banking relationship, it is also important that these GTC can be adapted. In general, a change to the GTC is a change to the contract and should be made in accordance with the general rules. Swiss law,…

Digital Markets Act – questions choisies

A few enterprises of important size, offering core online platform services, play a major role in the digital economy and, as such, exercise significant control over market access, leading to dependencies of their users and potentially to unfair behaviors. To apprehend and help preventing abuses, the European Commission has issued a new Regulation proposal, the “Digital Markets Act ”, applying to…

Wissen, Nichtwissen und Wissenmüssen von natürlichen und juristischen Personen

Many statutory or contractual provisions’ legal con­sequences depend on whether the addressee knew or should have known a fact. Thus, the question of what natural or legal persons know is of paramount im­por­tance. This paper defines the three key terms “knowledge”, “lack of knowledge”, and “knowledge that one should have had”. Also, it examines under which conditions a third party’s knowledge…

Intelligence artificielle: licence libre et gouvernance collective des données à travers l’altruisme des données et les data trusts

Data access is central for the development of Artificial Intelligence (AI). Data may be however subject to a multitude of rights and actors (e.g. copyrighted works or personal data posted on social media or collected through captcha and used for AI training purposes), leading to a fragmented legal framework and legal frictions. This contribution explores how to apply open and free licenses to all…

Intelligence artificielle: la titularité des données

Data are at the heart of AI systems. Without data, AI systems are valueless. Data come into play at different phases, both at the input level (training sets, validating sets, testing sets), as well as at the output level. Although the Proposal for AI Regulation released on 21 April 2021 by the European Commission offers a promising regulatory framework as to the governance related to the design…

Fairnessregeln für Mitarbeiterbefragungen in internen Untersuchungen bei Banken

Internal investigations are the appropriate instrument for banks to clarify misconduct within the company. Like other companies, they are obliged to this «catharsis». The core element of internal investigations are the so-called «employee interviews». These interviews can represent a conflict situation for the company em­ployees. In principle, there is a duty to cooperate and to tell the truth…

Entreprises et Big Data: peut-on forcer les entreprises à partager leurs données non-personnelles (par des licences obligatoires ou des licences „FRAND“)?

In the digital age where big data is of key value, companies generate a massive amount of data and make intensive use of data. Given that companies may depend on the access to non-personal data (industrial data) held by other companies to remain competitive, the question arises as to whether companies should be forced to share their non-personal data with each other (B2B data sharing) on the…

Big Data and the Law: a holistic analysis based on a three-step approach – Mapping property-like rights, their exceptions and licensing practices

Given Big Data’s increasing importance, it seems important to develop a clear and coherent body of law and to organize the different relationships among all stakeholders and legal regimes that grant different property-like rights. There are already numerous studies on the interactions between Big Data and intellectual property and/or privacy, but less that map all legal regimes, including the…

Trois modèles de contrôle des investissements transfrontaliers

The screening of foreign investment has become a growing concern for many countries. In the midst of a trade war between the US and China as well as issues related to state-owned companies’ interference in the EU, it is bound to become a subject of heated debates in Switzerland. As we continue to live through a global pandemic, some countries are seeing themselves lacking or at least vulnerable…

Gouvernance des groupes: «E Pluribus Unum»?

The atomistic vision of the legal independence of a company comprised within a group reflects a historical conception. This view is not consistent with the reality of the group, which has become a predominant model structure in the economic sphere. The recognition in case-​law of the group’s interest would allow the economic phenomenon to be taken into account in a positive manner, while…

Wie die Arbeit, so der Lohn – Vergütung in privaten und kotierten Gesellschaften

Rising executive pay is a vital topic for shareholders, proxy advisors, academics and the wider public. It is worth noting that the remuneration of auditors for their audit services has hardly attracted shareholder attention even though falling audit fees may be a reason for weaknesses in corporate control. In this perspective it looks like an anomaly that the remuneration of the party…

Les avantages (statutaires) particuliers de l’art. 628 al. 3 CO : ­une alternative méconnue aux conventions d’actionnaires

Swiss Company Law provides for a «one size fits all» form of limited by shares companies. The underlying idea is that the articles of association can be customized in order to fit the needs of each particular case. On the other hand however flexibility is limited, in particular due to the fact that besides payment of an emission price for their shares, the articles of association cannot put any…

L’ouverture de la faillite : situation actuelle et mise en perspective

This article presents the opening of Bankruptcy Procee­d­ings under Swiss law and especially the problem of the costs. Bankruptcy Proceedings against legal entities are normally initiated without prior enforcement proceedings. According to 725 II CO, the board of directors has a legal duty to notify the court in the case of overindebtedness. In this case, the payment of an advance is not…

La faillite bancaire : plus vite que la musique ?

The Swiss legislator has mainly been guided by four elements to design the bankruptcy regime for banks: simplification, celerity, flexibility and efficiency. As a result, the legal regime bases itself on ordinary bankruptcy law but introduces specific derogations to speed up the process when a bank is at stake. Focusing on liquidation’s celerity this article addresses two aspects of bank…

Assainissements dans le cadre d’un sursis concordataire ­(assainissements-sursis)

Although the Parliament has declined, a bit by accident, the proposal of the Federal Council to get rid of the provisions on the adjournment of bankruptcy (725a CO), it is again proposed deleting them in the context of the contemplated revision of corporate law. The question therefore is why, despite the revision aiming to facilitate restructuring (art. 293 ss LP), companies apparently continue…

OR 2020: Braucht die Schweiz ein neues Vertragsrecht? – Eine Einführung

In spring 2013, the draft for a new General Part of the Swiss Code of Obligations was published under the title “Schweizer Obligationenrecht 2020” (OR 2020; in French “Code des obligations suisse 2020” [CO 2020]). The OR 2020 draft contains model rules for a new General Part of the existing Swiss Code of Obligations in German, French, Italian and English, as well as explanatory notes on each…

CO 2020: un ponte verso il futuro

CO 2020 is a project that aims, according to its authors, to modernize the general part of the Swiss Code of Obligations. This article explores some relevant points of the project, summarizing it and including some critical examination. The project can be seen as a bridge to the future. The first solid bank, on which rests the begining of the bridge, is certainly the existing Code of Obligations,…

L’enrichissement illégitime dans le CO 2020

The obligations arising from unjust enrichment consti­tute certainly one of the most complicated issues of the Code of Obligations. Case law and legal scholars have created several distinctions and categories supposed to help courts treat the disputes they have to decide. In fact, the result is a mosaic of solutions whose logic and coherence are not always the main quality. The salient…

Die Modernisierung des schweizerischen Abtretungsrechts –Bemerkungen zum Zessionsrecht im OR 2020

The draft for a new General Part of the Swiss Code of Obligations presented by law professors in 2013 includes interesting proposals for a revision of the Swiss assignment law. Following a number of international and foreign precedents, the draft suggests to restrict the effects of contractual no-assignment clauses to the relationship between the debtor and the creditor/assignor, a reform which…