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SML Proud to Host the NYSBA European Conference (Cont.)

Honored guests such as the United States ambassador to Switzerland and a Swiss Supreme Court justice attended a special event in Winterthur last Friday. The program was packed with high-profile speakers covering subjects from various fields of law. Read here what subjects have been covered during the afternoon session (for the morning program see our previous post)

Competition Law: Global Litigation Issues
Patrick Krauskopf listed the three mayor tasks of completion law: assessing mergers & acquisitions, investigating companies with a dominant market positon for possible abuse and, finally, fighting cartels. Scott Hammond started with what he ironically called “a light” topic: the extradition of foreign nationals accused of antitrust offenses. Melanie Aitken illustrated the differences between the US and Canada, where no one has ever spent a single night in jail for antitrust violations. According to Scott Hammond, competition laws are heavily enforced in the US and in Europe and even in other business cultures with less respect for competition law issues authorities are becoming more effective. China, for instance, introduced competition legislation only seven years ago, but fines have mounted to more than 200 million US dollars. Wes Powell called private litigation “one of the greatest innovations and curses of US law”. He described how in the Libor case two different courts reached very different conclusions. As for Europe, Andreas Heinemann believes that procedures in Germany take too long, while the EU does not allow parties enough time to present a case. He criticized that in a system where one institution can be both prosecutor and jury, there is insufficient separation of powers with regard to competition law in the EU.

Swiss-American partnership: A Success Story
Martin Naville talked about the Swiss-American partnership. Both countries are among the best in most global rankings. Their partnership is by no means restricted to business: the two countries are the oldest democracies, share core values, host many multilateral institutions, conduct joint humanitarian initiatives, and are home to some of the world’s best higher education institutions. While the problems between the Department of Justice and the Swiss Banks could not be ignored, Naville stressed that these were not unique and that similar conflicts existed with other important partners like Germany or the UK. Furthermore, American banks have also been fined and less than four percent of fines imposed since January 2008 have been paid by Swiss banks. In general, the US market remains highly profitable for Swiss companies, but new developments have to be taken into consideration, including new rules for pharmaceutical companies, insurers, and banks, changes in corporate tax systems, and the enforcement of the exchange of information. Nevertheless, according to Naville, the US market continues to offer opportunities, opportunities, opportunities!

Competition Law Panel: Extradition of Foreign Nationals Was One of the Hot Topics

In the last session of the day, Jay L. Himes, in talking about data protection, pointed out a fundamental mismatch: The globalization of business is real, while the globalization of jurisdiction still remains fiction. Claudia Götz Staehelin described the difficulties of multinationals in having to deal with multiple jurisdictions. She gave an overview of the major differences between US and Swiss law and presented some scenarios. The typical mindset of a US enforcer, “We want it all,” does not work when dealing with foreign entities. US enforcers encourage self-reporting, which leads to less severe penalties; but full cooperation and long-term commitment are expected.

The final keynote address was given by her Excellency, US Ambassador Suzan LeVine, who underlined the good relations between Switzerland and the US. The recovery of the US economy is currently creating more jobs than the dot-com boom, an environment which also favors innovation, major advances in energy production, and greater energy independence. She praised the Swiss Energy Strategy 2050 as potential a global framework and congratulated Switzerland on a “blockbuster trade deal” recently concluded with China. At the same time, she also addressed some critical issues, such as the fact that the Congressional International Anti-Piracy Caucus has watchlisted Switzerland as one of the biggest offenders (alongside China, India, and Russia). With regard to the EU, she mentioned the General Data Protection Regulation currently being discussed, which may severely affect operations of US companies like Apple, Facebook, or Google. Despite such tensions, the transatlantic partnership needs to prosper, in order to ensure economic growth. “No other nation will step up to do the job”, she said, “but others will join, if we lead.”

Contact: Patrick Krauskopf, Center for Competition and Commercial Law

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