Swiss Law Research Articles

국제상사중재상 택일조항과 기판력원칙의 적용에 관한 고찰

Purpose: By analyzing the res judicata principle and the fork-in-the-road clause, which are frequently at issue in international commercial arbitration, this study presents the implications related to these clauses after analysis of Iberdrola v. Guatemala (II).
 Research design, data, and methodology: This study mainly adopts the literature research method, and utilizes domestic and foreign literature as well as Internet data.
 Results: ① The issue of res judicata was decided based on international law and the law of the place of arbitration (Swiss law). ② Based on the triple identity test, the ICSID recognized the arbitration’s denial of jurisdiction under the res judicata principle, and the UNCITRAL claimant was blocked in arbitration.
 Conclusions: It is meaningful that it was decided that the respondent country does not have the right to file a counterclaim, saying that the former takes precedence in cases where the investment treaty and the arbitration rules contradict each other.

Governmental Measures in Switzerland Against Mass Bankruptcies During the Covid-19 Pandemic

This article examines the impact of the Covid-19 pandemic on debt enforcement and insolvency law in Switzerland. Despite the absence of strict lockdown measures, many sectors of the Swiss economy suffered significant losses. The government responded by introducing generous public support schemes to keep businesses afloat. The article focuses on the modifications made to Swiss law during the pandemic to avoid mass bankruptcies and facilitate restructurings. The government first introduced a general stay of proceedings, preventing debt collection but not affecting the underlying obligation to pay, and later the Covid-19 Ordinance on Insolvency Law, which provided relief to companies, especially SMEs, to implement the necessary restructuring measures. Some unsuccessful initiatives, such as a special moratorium introduced for SMEs, are also discussed. Finally, the article considers the limited take-up of some of the insolvency measures and discusses the possible consequences of the obligation to repay Covid-19 loans in the future. Overall, it provides a comprehensive overview of the impact of the pandemic on debt enforcement and insolvency law in Switzerland and the measures taken to mitigate its effects.

Industrial Property Arbitration in Turkey: An Analysis in Comparison with Swiss Law

Abstract Given the difficulties in international intellectual property litigation, such as jurisdictional issues, choice of law, and recognition and enforcement of foreign judgments, arbitration and other dispute resolution mechanisms may be better tailored to resolve intellectual property disputes. Under Swiss law, these disputes are arbitrable to such an extent that arbitral tribunals seated in Switzerland and state courts are equally competent to rule on the validity of industrial property rights. This paper assesses the arbitrability of industrial property disputes under Turkish law, under which there is neither a specific statutory provision nor an official decision regarding their arbitrability. The paper concludes that disputes arising from industrial property rights should be considered arbitrable under Turkish law, provided that for disputes over the validity of industrial property rights, the arbitral tribunal decides on the industrial property rights’ enforceability and the arbitral award has an inter partes effect. Although submitting industrial property disputes, especially those on employee inventions, to arbitration may in certain cases not be accepted due to the intention to protect the weaker party, employees are obliged to resort to arbitration for the resolution of their employee invention disputes under Turkish law. This paper also examines the resolution of employee invention disputes by way of arbitration from a comparative perspective.

Climate change: risks and recommendations for companies and their boards illustrated by an analysis under Swiss law

ABSTRACT Climate litigation against companies has increased significantly in the past couple of years. At the same time, regulation with respect to climate change is developing rapidly, such that it may be difficult for companies to identify which laws apply to them and how they should address the legal risks relating to climate change and climate litigation. This paper discusses court rulings which could be considered ‘landmark cases’ since they are the first to assess questions around the responsibility for climate-related damages and the curbing of CO2 emissions, and highlights climate litigation proceedings that are still pending, illustrating the types of claims which may be expected going forward. It then outlines the risks for companies or their boards of directors to be sued for alleged damages relating to climate change or greenwashing, illustrated by an analysis under Swiss laws, and provides concrete measures for boards of directors and the management of companies to minimise these risks.

Russell and Burch's 3Rs then and now: The case of Switzerland.

Since Russell and Burch introduced and defined the 3Rs, i.e., the replacement, reduction, and refinement of animal use in research, in 1959, different definitions have emerged and been implemented in guidelines and policies. Switzerland is known for having some of the most restrictive legislation regarding the use of animals, in which the 3Rs are also defined and implemented. To our knowledge, the purpose and definitions of the 3Rs used in the Swiss Animal Welfare Act, Animal Protection Ordinance and Animal Experimentation Ordinance have never been compared with Russell and Burch's original purpose and definitions. In this paper we make this comparison with two aims: to reveal ethically relevant departures from the original purpose and definitions, and to provide an ethical evaluation of the current Swiss law regarding the 3Rs. In doing so, we first expose the similarity of purposes. We then identify one risky departure from the original definition of replacement in Swiss law, which shows a problematic focus on species. Finally, we address Swiss law's failure to apply the 3Rs in the most effective way. With respect to this last point, we discuss the need for 3R conflict resolution, the timing of application of the 3Rs, problematic prioritizations and choices of convenience as well as a solution to apply the 3Rs more effectively using Russell and Burch's concept of total sum of distress.

Poziv na ponudu iz ugla uporednog i srpskog prava

The author begins with an analysis of an invitation to treat, its characteristics and legal consequences. Its peculiarities are also highlighted through comparison with other contractual initiatives - an offer, an invitation to negotiations, a unilateral promise, and a public promise of reward. The central part of the work is devoted to the analysis of cases that are qualified as the invitation to treat in Serbian, French, Swiss, German, and English law. These are advertisements, dis play of goods with or without a marked price, auctions, and tenders. The legal nature of online advertisements and online auctions is presented as well. The author explains the reasons for specific comparative law solutions and draws conclusions that justify the qualification of contractual initiatives as invitations to treat or she criticizes the solutions presented. Also, attention is devoted to the analysis of Serbian positive law since its provisions are compared with the solutions of other legal systems. Furthermore, some of those provisions served as a model for Serbian legislator.

Should continuous deep sedation until death be legally regulated in Switzerland? An exploratory study with palliative care physicians.

In Switzerland, continuous deep sedation until death (CDSUD) is not legally regulated and the current clinical practice guidelines on palliative sedation from 2005 do not refer to it. In contrast, in France, a neighbouring country, CDSUD is regulated by a specific law and professional guidelines. International studies show that in culturally polymorphic countries, there are variations in the end-of-life practices between linguistic regions and that a linguistic region shares many cultural characteristics with the neighbouring country. This study aimed to explore the attitudes of palliative care physicians from the French-speaking part of Switzerland on the question of whether CDSUD should be legally regulated in the country, and to identify their arguments. Our study also aimed to assess whether a hypothetical Swiss law on CDSUD should be similar to the current legal regulation of this practice in France. We conducted a multicentre exploratory qualitative study based on face-to-face interviews with palliative care physicians in the French-speaking part of Switzerland. We analysed the interview transcripts using thematic analysis, combining deductive and inductive coding. Most of the participants were opposed to having specific legal regulation of CDSUD in Switzerland. Their arguments were diverse: some focused on medical and epistemological aspects of CDSUD, whereas others emphasized the legal inconvenience of having such regulation. None had the opinion that, if CDSUD were legally regulated in Switzerland, the regulation should be similar to that in France. This study allows to better understand why palliative care physicians in French-speaking Switzerland may be reluctant to have legal regulation of CDSUD. Further studies covering the whole country would be needed to gain a more complete picture of Swiss palliative care physicians on this question.

New puff-like disposable electronic cigarettes: expert consensus on their regulation

New disposable electronic cigarettes have arrived on the Swiss market since 2020. Our study, conducted according to the three steps of the Delphi fast-track approach developed at Unisanté, obtained a consensual agreement among French-speaking Switzerland experts on the regulation of these products. Ideally, the panel of experts recommends a sales ban of the product. If this is not possible, a number of aspects should be strictly regulated: taxation, product composition and marketing, and sales and consumption restrictions. These regulations should go further than the current European directive and the future Swiss law. The conclusions will be useful to support and guide political decision making from a public health and environmental perspective.

Development of a Protocol Using the Delphi Method for the ad interim Supply of Hormonal Contraceptives in Swiss Pharmacies.

(1) Background: Pharmacists are often challenged with situations where women are already on hormonal contraceptives (HC) but have no valid prescription. By Swiss law, pharmacists are allowed to supply prescription-only drugs in exceptional situations without a physician's prescription. Because eligibility for HC can change, women at risk for complications, such as serious side effects, need to be identified. We aimed to develop a protocol to assist pharmacists in clarifying and documenting eligibility for HC. (2) Methods: We conducted a survey using the Delphi method to identify relevant clarifications and develop a protocol for pharmacists. Proposed material was created based on the literature and existing toolkits/protocols aimed at verifying eligibility for HC. A multidisciplinary expert panel, consisting of gynecologists and pharmacists, reviewed the proposed material and provided anonymized feedback over two survey cycles. (3) Results: This Delphi survey revealed items essential to the clarification of eligibility for HC in pharmacies for women who are already using it. This resulted in a protocol that maps "best practices" regarding these ad interim supplies of HC given without a prescription in Switzerland. (4) Conclusions: This survey, made using the Delphi method, allowed us to create a protocol for pharmacists that aims to verify and document eligibility for HC in Switzerland, where HC is frequently supplied without a prescription.

From Sagen to Henriques: Legal Challenges to Olympic Event Selection Decisions and the Role of the Court of Arbitration for Sport

The interests of athletes are a fundamental aspect of the Olympic Movement. Yet, athletes face jurisdictional barriers when attempting to advance their interests and challenge the International Olympic Committee (IOC)’s exercise of authority over the Olympic Movement, including the IOC’s decisions regarding which sport events are included in the Olympic Games. Previous attempts to challenge the IOC’s selection of sport events for the Olympic Games have been unsuccessful in national courts, as seen in the case of Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (“Sagen”) involving women’s ski jumping. Following the outcome in Sagen, academics theorized that athletes might have better success challenging Olympic event selection decisions at the Court of Arbitration for Sport (CAS), as CAS has several jurisdictional advantages over national courts. A recent CAS decision in Henriques v. IOC (“Henriques”), involving the exclusion of women’s 50 km race walking from the 2020 Olympic Games, casts doubt on this approach as CAS dismissed the application due to the lack of an arbitration agreement between the appellants and the IOC. However, the outcome in Henriques should not deter athletes from using CAS to challenge the IOC’s Olympic event selection decisions in future cases. It is arguable that the CAS panel’s reasoning in Henriques did not properly consider how the arbitration clause in the Olympic Charter could form the basis of an arbitration agreement between the appellants and the IOC under Swiss law. Additionally, the CAS panel’s decision in Henriques can be used to inform legal strategies in subsequent disputes to ensure that CAS is able to hold the IOC accountable for Olympic event selection decisions that are discriminatory or otherwise unlawful.

Proposal of International Council for Harmonization (ICH) Guideline for the Approval of Biosimilars

ABSTRACT Objectives Since the initial release of biosimilars 18 years ago, regulations for their licensing have changed considerably; however, there is no global consensus on these regulations. Establishing harmonized regulatory guidelines for the approval of biosimilars with support from the ICH, an independent, non-profit association under Swiss law, will significantly enhance the affordability of biological drugs. Methods Regulatory guidelines from the Food and Drug Administration (FDA), European Medicines Agency (EMA), Medicines and Healthcare products Regulatory Agency (MHRA), and World Health Organization (WHO) were analyzed for historical changes and elements critical to the safety and efficacy of biosimilars. Results Analysis of all EMA and FDA filings show that none of the animal testing and clinical efficacy testing failed because animals do not have the required receptors to initiate pharmacologic responses, and efficacy studies cannot be statistically powered to conclude any results. New analytical technologies will enable good biosimilarity determination, avoiding both tests. Conclusion Scientifically based ICH guidelines that remove redundant studies will reduce development costs, improve safety, and allow global drug distribution based on single compliance. These guidelines are particularly necessary for emerging countries lacking the expertise and resources to evaluate biosimilar filings.

Computer security incident response teams: are they legally regulated? The Swiss example

Computer Security Incident Response Teams (CSIRTs) or Computer Emergency Response Teams (CERTs) are an integral part of incident handling capabilities and are increasingly demanded by organizations such as critical infrastructures. They can hold many different skills and are of great interest to organizations in terms of cyber security and, more concretely, cyber incident management. This contribution seeks to analyze the extent to which their activity is regulated under Swiss law, considering that private CSIRTs are not regulated in the same way as governmental and national CSIRTs such as the Computer Emergency Response Team of the Swiss government and official national CERT of Switzerland (GovCERT).

The Tax Treatment of Crypto Assets under Swiss and Turkish Law Compared

The emergence and proliferation of digital payment instruments in the form of cryptocurrencies – such as Bitcoin and numerous coin and/or tokens – raises questions regarding the tax treatment of these uncertificated securities. In this article, some of these questions are answered from a Swiss and Turkish tax law perspective.

İsviçre ve Türk Hukuku'ndaki Taşınmaz Rehni Türleri ile Karşılaştırmalı Olarak Avrupa İpoteği (Eurohypotec) Kavramına Genel Bir Bakış

Türk Hukuku’nda taşınmaz rehni türleri arasında en yoğun uygulaması olan ipotek hakkı, bağlı bir teminat türü olarak hem borçlu kişi tarafından hem de üçüncü kişi tarafından tesis edilebilen ancak malik lehine kurulması mümkün olmayan tapu siciline tescil ile varlık kazanan bir real teminattır. İpotek hakkı güvence görevini yerine getirirken tedavül imkanı sağlamamaktadır. Uygulaması her ne kadar az olsa da Türk Hukuku’nda yer alan diğer taşınmaz rehni türleri ise ipotekli borç senedi ve irat senedidir. İsviçre Hukuku’nda taşınmaz rehni türleri arasında ipotekli borç senedi ve ipotek bulunmaktadır. İrat senedine ilişkin hükümler ise revizyon sonrasında yürürlükten kaldırılmıştır. İsviçre Hukuku’nda uygulamada sıklıkla tercih edilen ipotekli borç senedi, senede dayalı veya tescile dayalı şekilde çıkarılabilmektedir. İpotekli borç senedi, güvence görevinin yanı sıra tedavül imkanını da sahiptir. Avrupa ipoteği ise Avrupa ülkelerinde ortak bir taşınmaz rehin hukuku yaratılabilmesi için ortaya çıkmış hukuki bir kurumdur. Avrupa ipoteği, özellikle İsviçre Hukuku’nda yer alan ipotekli borç senedine benzer özellikler göstermektedir.

Law of Group Companies “History and Terminology”

Ekonomik yoğunlaşma uygulamada en yaygın şekilde gruplaşma anlamında konzern/şirketler topluluğu ve şirket birleşmeleri şekliyle kendini göstermektedir. Şirket birleşmelerinde birleşen ve tek bir şirket haline gelen şirketler hem hukuki ve hem de ekonomik bağımsızlıklarını yitirmektedir. Konzern şeklinde ekonomik yoğunlaşma modelinde ise, bağlı şirketler hukuki bağımsızlıklarını korurken, ekonomik bağımsızlıklarını yitirirler. Bu durum ise hukuken ve ekonomik bakımdan şirketlerin bağımsızlığı üzerine kurulu bir hukuk sistemi (geleneksel şirketler hukukunun) ile bağdaşmamaktadır. Bu uyumsuzluğu gören hukuk düzenleri harekete geçmiş ve şirketler hukukunu buna uygun düzenlemişlerdir. Başta Almanya olmak üzere, İsviçre ve Türk Hukuku’nda düzenlemeler yapılmıştır. Türk kanun koyucusu 6102 Sayılı Türk Ticaret Kanunu md. 195 - 209 hükümleri arasında ilk defa bu yeni düzene uygun hükümler sevk etmiş, konuyu müstakil ve etraflıca ele almıştır. “Konzern” Alman hukukunda esas alınan kanuni terim iken, “şirketler topluluğu ve topluluk” Türk hukukunda “konzern” yerine kullanılan kanuni bir terim halini almıştır. Alman konzern hukuku POK § 18 paragrafı ekseninde tek elden yönetimi konzernin belirleyici unsuru olarak kabul ederken, Türk şirketler topluluğu hukuku, Alman konzern hukukundan farklı olarak eş düzey konzernleri ve tek elden yönetim sistemini kabul etmemiş ve düzenlememiştir. Türk şirketler topluluğu esaslı olarak kontrol prensibine göre açıklanmaktadır. Başlıca amacı başka işletmelere katılmaktan ibaret olan saf holdingler (ve karma holdingler de) TTK md. 195’de belirtilen şartları sağlıyor ise hâkimiyeti altında bulunduğu şirket veya şirketlerle birlikte şirketler topluluğu oluşturacaktır. TTK md. 195 vd. hükümleri ile anlatılan ve ortaya konulan bir üst kavram olarak ‘şirketler topluluğu hukuku’’dur.

An ethical assessment of the use of old and new methods to study sociality in wild animals

Abstract The use of novel tools and technologies is transforming our approaches to study wild animal behaviour. Yet, from disturbance of natural habitats through field experiments to tagging, there is much ground for researchers to provide clear ethical assessment of their research practices and how they can affect wild animals. In this perspective, I review the current trends in field animal behaviour research, with a focus on studies on sociality, and investigate the forms under which such practices can impact animals. I focus particularly on the notions of disturbance and invasiveness. I build a parallel with the legal classifications in terms of degrees of severity found in the Swiss law and aimed at protecting animal well‐being, inspired by the principles of the 3R (Replace, Refine, Reduce) used in invasive animal research. I highlight how the impact of research can be assessed and monitored, particularly through behavioural and physiological means, identifying areas where such monitoring is critical, but also acknowledging the theoretical and practical limitations to such tools. I hope to trigger discussions on an ethical use of new tools and technologies, which can both inspire new research while limiting the disturbance to wild animals.

A second chance to make a first impression-ParyleneC residuals staining the surface of cardiac implantable electronic devices.

Cardiac implantable electronic device (CIED) malfunctions are rare but concerning.1 We report a series of 3 devices, where new cardiac resynchronization therapy defibrillators (CRT-Ds) appeared stained. As per Swiss law, analysis of these devices did not require ethical approval.

Article: Free Movement of Persons Between the EU and Switzerland: Quo Vadis?

Relations between Switzerland and the European Union (EU) have been shaped by various (bilateral) agreements. This contribution discusses one of the most important agreements between Switzerland and the EU; the agreement on the free movement of persons (AFMP). The AFMP does not have its own dispute settlement mechanism or supervisory body. Dispute resolution is now left to independent Swiss courts and the Court of Justice of the European Union (ECJ). On 23 November 2018, a first draft of an institutional framework agreement between Switzerland and the EU was published. The aim of this proposed framework agreement was partly to simplify the complex relations between Switzerland and the EU. In May 2021 the Swiss government pulled the plug on the institutional framework agreement because of concerns about migration, labour rights, and worries about the judicial authority the institutional agreement would give to the ECJ. The EC is however clear about what it wants. Amongst others, the dynamic alignment of Swiss law to EU law and a functioning dispute settlement mechanism are issues the EC wants to see solved. In this article the author explores, among other things, what the consequences could be for Swiss fiscal autonomy if Switzerland would follow the EC. The author also reflects in more detail on the ECJ’s case law on frontier workers and the final settlement on capital gains from shareholdings upon emigration to Switzerland. Free movement of persons, Switzerland, taxation, bilateral agreements, Wächtler judgment.

Ideologischer oder pragmatischer Mehrwertausgleich? Eine interkantonale Untersuchung zum Einfluss der politischen Legitimation auf die Ausgestaltung des Ausgleichs planungsbedingter Vorteile in der Schweiz

As one of the few examples worldwide, Swiss law serves for an instrument to compensate for planning-related increases in land value. The provision at the federal level however is not directly applicable, but merely a binding legislative mandate to the cantons. Beyond the minimum requirements under federal law, the cantons are given far-reaching discretion in the legislative process. This paper exploits this constellation in order to examine how the political legitimacy of the instrument affects the concrete legal configuration. Based on the planning literature, two schools of thought hold precedence. First, that pragmatic arguments would lead to farreaching cantonal regulations, e.g., through the explicit considerationof rezoning and upzoning as further taxable eventsin addition to the federal law requirement of zoning. Second, that ideological arguments are likely to only lead to minimal implementations, e.g., to a levy rate that does not exceed the minimum 20 percent prescribed by federal law. However, thiscomparative study based on the cantons of Basel-Stadt, Basel-Landschaft, and Bern instead points to a reverse correlation. In contrast to international experience, ideological arguments in Switzerland lead to amore far-reaching design of value added capture under planning law.

ALMAN VE İSVİÇRE HUKUKUNDA KAMU GÖREVLİLERİNİN DAVRANIŞLARI SONUCU MEYDANA GELEN ZARARLARDAN İDARENİN SORUMLULUĞU

It is possible that public officials who perform the actions of the administration, which has a wide organizational structure and field of activity, may harm individuals during the performance of public service. In principle, these damaging behaviors are attributed to the administration. According to which liability provisions the administration will be held responsible for damages arising from the behavior of public officials during the execution of administrative service, German and Swiss legal systems are regulated differently from Turkish law. For example, in German Law, the responsibility of the administration is resolved in civil jurisdiction, according to the provisions of private law. Since our law terms of the responsibility of the administration, is based on the French system, there are generally works comparable to the French law. There are a limited number of studies about the responsibility of the administration caused from the activities of the public officials, on the German and Swiss law. In this study, it was aimed to fill this gap and was tried to be examined according to German and Swiss laws, of the responsibility of the administration for the damages caused by the faulty performance of the public duty.