E-commerce
entry in Switzerland or in the United States
In
the U.S.:
Preliminary checklist:
Consult the U.S. Federal Trade Commission (FTC)
Consult the Better Business Bureau Code of Online
Business Practices
Antitrust & competition law (both federal and
state)
Privacy laws (both federal and state)
Contractual terms and conditions (conditions générales
in French): like terms for payment, delivery, allocation of risk of loss,
warranties, governing law, dispute resolution processes (have to be carefully
tailored to the transactions at hand, thus no copy-paste from another website)
Agencies to contact or to consult (federal and state,
linked to the e-commerce practice envisioned)
State registration requirements
Exigencies depending on the sale audience (businesses,
consumers, children)
Doing business in California: Information, links and
incentives for business owners considering locating in California; type of
business, county, and city for a list of required permits and agency contacts;
Resources for business start-ups in California and nationwide;
Forms, samples, information about forming corporations and other businesses,
trademarks, UCC filings, and more:
https://www.ca.gov/doingbusiness/
http://businessportal.ca.gov/
http://www.calgold.ca.gov/ (business permits and other requirements)
http://www.onecle.com/ (business contracts)
https://saclaw.org/law-101/finding-primary-law-cases-statutes-and-regulations/
Import/export (Switzerland to U.S.)
Generally:
http://www.swissworld.org/en/economy/international_context/trade/
Plan, Launch, Manage, Grow your business : U.S. Small Business Administration:
https://www.sba.gov
Funding Programs: Lender Match is a free online referral tool that connects small businesses with participating SBA-approved lenders:
https://www.sba.gov/funding-programs/loans/lender-match?utm_medium=email&utm_source=govdelivery
Plan, Launch, Manage, Grow your business : U.S. Small Business Administration:
https://www.sba.gov
Funding Programs: Lender Match is a free online referral tool that connects small businesses with participating SBA-approved lenders:
https://www.sba.gov/funding-programs/loans/lender-match?utm_medium=email&utm_source=govdelivery
Export Risk Insurance:
Exercising CSR (Corporate Social Responsibility) also
brings benefits for example when participating in
public tenders or using Swiss Export Risk Insurance services.
Swiss Export Risk Insurance
(SERV)
When evaluating insurance applications, SERV (https://www.serv-ch.com/en/ ) prioritizes OECD Guidelines on sustainable lending to low-income
countries, as well as environmental, social and human rights aspects, and
anti-corruption. In the process, it draws on the SERV’s Guidelines for reviewing
environmental, social and human rights issues and above all takes into account the OECD Guidelines for
Multinational Enterprises,
including any reports presented by the National Contact Point of
Switzerland.
Standards Map provides information on over 210
standards, codes of conduct, audit protocols addressing sustainability hotspots
in global supply chains.
http://www.standardsmap.org/identify
Swiss Customs Administration
Cargo Processing:
Export Customs declaration e-dec web:
https://www.ezv.admin.ch/ezv/en/home/customs-declaration/declaration-companies/e-dec-export/export-customs-declaration-e-dec-web.html
The tariff numbers and information on bans, restrictions and authorization for specific goods can be found in the Electronic Customs Tariff - Tares, www.tares.ch.
In the corresponding search window, select "Export" as the direction and also select the destination country. Any conditions (e.g. approval requirements) are to be found under "Comments".
https://www.ezv.admin.ch/ezv/en/home/information-companies/declaring-goods/exportation-from-switzerland/declaring-goods.html
Import customs declaration e-dec web
https://www.ezv.admin.ch/ezv/en/home/customs-declaration/declaration-companies/e-dec-import/import-customs-declaration-e-dec-web.html
The full content is available in German, French or Italian.
Go to:
link e-dec web Production
Appeal against a Customs' taxation decision:
https://www.ezv.admin.ch/ezv/en/home/information-companies/declaring-goods/exportation-from-switzerland/appeals.html
https://www.ezv.admin.ch/ezv/fr/home/declaration-en-douane/recours--mode-d-emploi.html (in French)
Free trade agreements, origin:
https://www.ezv.admin.ch/ezv/en/home/topics/free-trade-agreements--origin.html
World Cutoms Organization:
http://www.wcoomd.org/en/about-us/wco-members/wco-regional-websites.aspx
http://www.standardsmap.org/identify
Swiss Customs Administration
Cargo Processing:
Export Customs declaration e-dec web:
https://www.ezv.admin.ch/ezv/en/home/customs-declaration/declaration-companies/e-dec-export/export-customs-declaration-e-dec-web.html
The tariff numbers and information on bans, restrictions and authorization for specific goods can be found in the Electronic Customs Tariff - Tares, www.tares.ch.
In the corresponding search window, select "Export" as the direction and also select the destination country. Any conditions (e.g. approval requirements) are to be found under "Comments".
https://www.ezv.admin.ch/ezv/en/home/information-companies/declaring-goods/exportation-from-switzerland/declaring-goods.html
Import customs declaration e-dec web
https://www.ezv.admin.ch/ezv/en/home/customs-declaration/declaration-companies/e-dec-import/import-customs-declaration-e-dec-web.html
The full content is available in German, French or Italian.
Go to:
link e-dec web Production
Appeal against a Customs' taxation decision:
https://www.ezv.admin.ch/ezv/en/home/information-companies/declaring-goods/exportation-from-switzerland/appeals.html
https://www.ezv.admin.ch/ezv/fr/home/declaration-en-douane/recours--mode-d-emploi.html (in French)
Free trade agreements, origin:
https://www.ezv.admin.ch/ezv/en/home/topics/free-trade-agreements--origin.html
World Cutoms Organization:
http://www.wcoomd.org/en/about-us/wco-members/wco-regional-websites.aspx
U.S. Customs and Border Protection:
Trade:
Basic Importing and Exporting.
For the Trade Community, including rulings and legal
decisions (i.e. binding advance rulings), the Customs Bulletin and Decisions (a
weekly compilation of decisions, rulings, regulations, notices, and abstracts
concerning customs and related matters of U.S. Customs and Border Protection,
the U.S. Court of International Trade, and the U.S. Court of Appeals for the
Federal Circuit), and an archive of trade-related Federal Register Notices
(provides the public with additional guidance concerning the importation of merchandise
into the United States).
E-Allegations: online trade violation reporting
system.
Once done: regularly monitor compliance.
October 10, 2008, Joint Declaration of the Swiss Confederation
and the United States of America on Cooperation and Promotion regarding
Electronic Commerce:
U.S. Federal trade Commission (FTC) website:
Enforcement:
-
Premerger Notification Program, to be submitted to the FTC and to the
DOJ, according to the Hart-Scott-Rodino Act Amendments to the Clayton Act (cf.
coordination in merger investigations with State Attorneys General)
-
Merger Guidelines (2010)
-
Anticompetitive Practices: 1) Horizontal conduct, 2) Single firm
conduct. An advanced search page is available to find a specific antitrust
case. Also available: 1) Antitrust Guidelines for collaborations among
competitors, 2) Antitrust Guidelines for the licensing of Intellectual
property, 3) Antitrust Enforcement Guidelines for international operations,
issued by the DOJ and the FTC (in April 1995). In addition, the FTC provides
guidance concerning proposed conduct in the form of advisory opinions. Cf. also
the FTC rules in Title 16 of the CFR
Policy:
-
Advisory opinions: filters can be used to find a specific opinion
-
In international matters, econsumer.gov can be useful for example to
report cross-border complaints (enforcement agencies can use those complaints
to investigate fraud)
Tips & Advice:
-
Advertising and Marketing: basics, children, endorsements, online,
privacy and security (U.S.-E.U. safe harbor framework)
-
Legal resources: filters to find legal resources like cases, reports,
staff opinions, events, by topic, type or industry
-
Competition guidance: resources to help businesses to comply with
antitrust laws: 1) The antitrust laws themselves, 2) The enforcers: FTC and DOJ
(federal) (for ex. a case of voluntary compliance by entering into a consent
order), Attorneys general (states), 3) Suits by private parties, 4) Here is
located again the 1995 Antitrust Enforcement Guidelines for International Operations,
5) Dealing with competitors (Antitrust Guidelines for Collaboration among
Competitors (39 p.) (price fixing, bid rigging, market division, customer
allocation, group boycotts, etc.), 6) Dealings in the supply chain (vertical
relationships): a) manufacturers and imposed requirements, b) exclusive dealing
and requirements contracts, c) refusal to supply, 7) Single firm conduct
(monopolize, or attempt to monopolize): a) monopolization defined, b) exclusive
supply or purchase agreements, c) tying the sale of two products, d) predatory
or below-cost pricing, e) refusal to deal
Price Discrimination: Robinson-Patman violations:
sellers charging competing buyers different prices for the same commodity (the
Act does not apply to services).
Mergers: 1) The greatest antitrust concern arises with
proposed mergers between direct competitors (horizontal mergers). Thus the FTC
and the DOJ have developed Horizontal Merger Guidelines, and a Commentary on
the Horizontal Merger Guidelines. 2) Premerger notification requirements of the
Hart-Scott-Rodino Act. Consent agreement may be adequate to resolve issues. If
no agreement, the agency may go to federal court to prevent the merger, while
an administrative trial on the merits of the deal is ongoing. The FTC website provides
a FAQ about merger consent order provisions. 3) Are also considered vertical
mergers, which involve firms in a buyer-seller relationship, and potential
competition mergers, in which the buyer is likely to enter the market and
become a potential competitor of the seller, or vice versa.
In
Switzerland:
State Secretariat for Economic Affairs (SECO)
The SECO is the Swiss Confederation’s competence
center for all core issues relating to economic policy, including information
about i.e. labor, unemployment, recruitment, work permits, products safety,
relations with EU, import-export, prices labelling, insurance against export
risks, competition and antitrust issues.
The English version of the website needs still to be
developed.
https://www.seco.admin.ch/seco/fr/home.html
https://www.seco.admin.ch/seco/fr/home.html
Small & medium-sized enterprises: the Swiss
official website:
Starting a venture: choice of a commercial name, choice of a trademark for the goods & services marketed, potential confusion issues with other ventures, actual use of the trademark necessary for keeping it protected, judicial relief, issue preclusion, conditions of publication of the judgment (cf. as an example the Swiss High Court decision 4A_257/2014, released Sept. 29, 2014, Arthursgroup SA v. Swiss Arthur Prod SA).
Useful to visit:
https://www.easygov.swiss/easygov/#/en
Swiss Intellectual Property database (International
trademark registrations with effect in Switzerland are not contained in this database:
for those, cf. WIPO website).
Commercial registers in Switzerland (with various
search options)
Certified excerpts of the registry of commerce have to
be ordered directly from the Cantonal registry of commerce where the legal
entity has its domicile.
https://www.zefix.ch/en/search/entity/welcome
https://www.zefix.ch/en/search/entity/welcome
Swiss Federal Institute of Intellectual Property
The federal government’s central point of contact for
all questions linked to IP. Full of information for newcomers, swissreg already
mentioned, online trademark registration, patent, technology and trademark
searches. Initial searches can be done cost-free over the internet in
intellectual property rights databases. For more complex queries, it’s better
to have a specialist do it. Legal information (publications, bilateral
relations (through agreements on trade and economic cooperation (TECA) or free
trade agreements (FTA), International cooperation, legislation, court
decisions).
Federal Patent Court
Swiss Court of first level in civil matters linked to
patents. Second level is the Swiss High Court itself.
World Intellectual Property Organization (WIPO) and
its alternative dispute resolution system (mediation, arbitration and expedited
arbitration, expert determination, domain name disputes):
Import/Export (U.S. to Switzerland)
Imports in Switzerland:
State Secretariat for Economic Affairs (SECO):
Imports Platform:
(Prescriptions (technical, etc.) to observe)
Portal of Swiss Technical Prescriptions:
Evaluation of conformity: Accreditation:
Swiss Accreditation Service (SAS):
Sales & Marketing from U.S. to Switzerland:
Shipping a product overseas: packing, labeling,
documentation, insurance,
Foreign Standards and Certification Information:
Incoterms®:
Cal Business Portal: Export/Import
http://businessportal.ca.gov/business-assistance/international-trade-and-investment/
Export: more resources:
https://2016.export.gov/salesandmarketing/eg_main_018203.asp
E-commerce mediation: the following Swiss office
offers without cost its help in case of a claim against a venture, linked to an
online purchase. Only condition: to try to settle first.
Contact
ombudsstelle@konsum.ch
https://www.e-commerce-guide.admin.ch/ecommerce/fr/home/ombudsstelle/e-commerce.html
https://www.e-commerce-guide.admin.ch/ecommerce/fr/home/ombudsstelle/e-commerce.html
The web portal ch.ch has a wealth of information and handy tips about living and working in Switzerland,
from entry formalities right up to a wage calculator.
http://www.swissworld.org/en/faq/working_in_and_doing_business_with_switzerland/
Working in Switzerland as third-country nationals
(Self-employed or non-self-employed):
Labor and Work permits: non-EU/EFTA nationals: this
useful link directs to the Swiss Secretariat for Migration:
Federal Data Protection and Information Commissioner:
the official Swiss agency about data protection. For ex. position about Cloud
Computing, E-Privacy (transparency on the Internet), suggestions about
E-Commerce, Regulations, requirements and situations about Trans-border data
flows, Surveillance in the workplace).
https://www.edoeb.admin.ch/edoeb/fr/home.html
https://www.edoeb.admin.ch/edoeb/fr/home.html
(U.S.-Swiss Safe Harbor. A mean for U.S organizations
to comply with personal Data Protection Law and regulations in Switzerland. Of
interest: Claims brought by Swiss citizens against
U.S. organizations will be heard, subject to limited exception, in the United
States; Compliance requirements are streamlined and cost-effective, which
should particularly benefit small and medium enterprises; Organizations
must comply with the seven Safe Harbor Privacy Principles; In general,
enforcement of the U.S.-Swiss Safe Harbor will take place in the United States
in accordance with U.S. law and will be carried out primarily by the private
sector. Private sector self-regulation and enforcement will be backed up as
needed by government enforcement of the federal and state unfair and deceptive
statutes; The FTC has committed to reviewing on a priority basis referrals
received from privacy self-regulatory organizations, such as BBBOnline and
TRUSTe, and the Commissioner alleging non-compliance with the Safe Harbor
Principles to determine whether Section 5 of the FTC Act prohibiting unfair or
deceptive acts or practices in commerce has been violated. If the FTC concludes
that is has reason(s) to believe Section 5 has been violated, it may resolve
the matter by seeking an administrative cease and desist order prohibiting the
challenged practices or by filing a complaint in a federal district court,
which if successful could result in a federal court order to same effect.
http://export.gov/safeharbor/swiss/)
Now Swiss-U.S. Privacy Shield:
https://www.export.gov/article?id=Privacy-Policy-FAQs-1-5
https://www.privacyshield.gov/welcome
Now Swiss-U.S. Privacy Shield:
https://www.export.gov/article?id=Privacy-Policy-FAQs-1-5
https://www.privacyshield.gov/welcome
Swiss
Jurisprudence of Interest:
Corporations: members of the board: joint liability in
case of illegal conduct of one of its members, no straw man without
responsibility, duty to oversee, to call for an extraordinary general assembly
if necessary, to resign if necessary (cf. Swiss High Court opinion released
Nov. 24, 2014, 9C_442/2014).
Corporations, members of the board: have to be reelected each year, by the assembly
of shareholders. This assembly has to be convened by the board (or the
auditors). One or several shareholders representing together at least 10% of
the capital stock may ask the board for the convening of a general assembly of
the shareholders. It has to be asked for in
writing, indicating as well the topics to be discussed and the propositions.
The board must take the necessary measures to state the right to vote of the
shareholders. It has thus to indicate where and when the shareholders will be
able to obtain an attestation or an entry card. If the board, duly and
regularly asked, refused to convene the assembly, suit before the court can be
filed. The judge has subject-matter jurisdiction to order the convening of the
general assembly. If the court deliver such an order and if the board still
refuse to comply with it, the judge may order the convening by a neutral third
party, i.e. a notary. In special circumstances, mainly if swift action is
needed, the judge is empowered to order herself the convening of a special
assembly of shareholders, without having to designate a neutral third party
(cf. opinions of the Swiss High Court, 4A_507/2014, and 4D_73/2014, released
Apr. 15, 2015).
Labor dispute: jurisdictional immunity:
cf. Swiss High Court decision, October 31, 2014, République A. c. B.,
4A_331/2014 (Type E Swiss legitimation card (domestic employees), employment
place in Geneva, application of the not yet in force Dec. 2, 2004, U.N.
Convention on the jurisdictional immunities of the States: general rule: no
immunity for labor disputes when place of employment in Switzerland. But look
at a possible application of the European Convention (Bâle) of 1972 on States
immunities, and at the Swiss hosting State law of 2007. Are beneficiaries of
Diplomatic immunities: individuals exercising “jure imperii” functions).
Labor law: is a change of the terms of an employment
contract possible while contract is ongoing? Yes, but: the income is due as a
counterpart of the work done for employer. By an agreement, parties can decide,
during contract time, for example to reduce the amount of salary, the reduction
being applicable before the next legal term for termination of contract. Such
an agreement is only valid for the future and cannot be linked to work already
done by employee. No form is necessary, there is no such thing here as a
Statute of Frauds. Very important: true that the judge will be reluctant to
admit easily a tacit agreement to reduce the salary due to employee. A tacit
agreement could be inferred if employee could have recognized that employer was
counting on the employee's tacit agreement and that without such a tacit
agreement, employer would have taken definite measures, for instance the
termination of the contract. In such a case, employee shall express in an
appropriate span of time his/ her disagreement with the reduction of income. See
as an example Swiss High Court opinion of March 27, 2015, 4A_434/2014.
Labor: contractual dispute between employer and
apprentice: immediate termination for cause, loss of confidence, wrongful
termination if trifle reproaches or lack of warnings, no need of a warning
before termination if serious violation of contractual obligations, amount in
dispute of at least CHF 15’000.- to seize the Swiss High Court in such labor
cases, relations with apprentice official commission (cf. Swiss High Court
decision 4A_188/2014, released Oct. 8, 2014, A. v. B.)
Racial discrimination: cf. Swiss Penal Code (CP) art.
261 bis
Mandatory pensions plans provided through employment
(so called 2nd pillar of the social security system): right of
employee (not necessarily employer) to be fully informed of all conditions of
the plan, including prospective benefits, financing, management of assets.
Repartition of assets in case of liquidation of the plan provider, possibility
and conditions to seize official controlling and supervising authorities
(federal and state) (to consider especially in case of reduction of the
workforce, restructuration, cancellation of the contract with the pension
institution). Conditions of possible intervention of the official guaranty fund
(“Fonds de garantie LPP”). On those topics, two decisions of the Swiss High Court
are worth reading, released the same day, Feb. 20, 2015, 9C_467/2014 and
9C_469/2014).
Digital & data protection:
Internet
Tort committed against one’s personal right through
Internet (reputation, etc.): the place in Switzerland where the result of
the tort occurred is a distinct forum; a claim can be brought there, and the
Court will have subject-matter jurisdiction. Note this caveat: however, as
such a place can be everywhere considering that Internet can be read
everywhere, something more than the Internet’s availability is needed: thus,
ultimately, the competent forum is the one where the economic loss took
place, usually the place of abode.
The Swiss Court located where the tort took place also
has jurisdiction (Swiss Federal Act on Private International Law, Art. 129).
A natural person is domiciled (1) where she is
physically located, (2) with the intent to live at that location.
(cf. Swiss Supreme Court, Sept. 6, 2016, decision
5A_812/2015, in French).
Identity theft, Swiss law, scant dispositions to date,
cf. Swiss Penal Code (CP), “escroquerie (art. 146 CP), menace (art. 180 CP),
contrainte (art. 181 CP), atteinte à l’honneur (art. 173ss CP), accès indu à un
système informatique (art. 143 bis CP), utilisation frauduleuse d’un ordinateur
(art. 147 CP), obtention frauduleuse d’une prestation (art. 150 CP) », http://www.admin.ch/bundesrecht/00566/index.html?lang=fr
Police reports containing personal data no longer
useful, or which were never usefull: right to ask for their destruction. Each
canton has its own system for cancellation. Proceeding weighing the competing
interests of society v. private interests. Swiss High Court has jurisdiction in
this matter as a court of national last resort. Loss of income recoverable for
time spent to litigate the matter? No if party not represented by a lawyer
(exception: extraordinary expenditures or extraordinary time spent in the frame
of the case (this is a general principle)) (cf. Swiss High Court opinion
released Nov. 13, 2014, 1C_363/2014).
Data protection : cf. Swiss Penal Code (CP) art.
179 novies http://www.admin.ch/bundesrecht/00566/index.html?lang=fr
Contracts:
Generally speaking, contracts concluded when parties
have reciprocally and concordantly manifested their wills. These manifestations
of wills can be implied (Art. 1 Federal Code of Obligations). But be very
careful: when offeror had no reason to expect express acceptation due to the
special nature of the business or due to the circumstances, contract is deemed
concluded if the recipient of the offer has not refused it within a suitable
span of time (Art. 6 Federal Code of Obligations). Thus a contract can be
concluded by silence, by doing nothing. For an example between a travel agency
and a customer, see Swiss High Court opinion, 4_A555/2014, March 12, 2015.
Property law:
Property Law: condominium (In French: Propriété par
étages (PPE)): problems linked to work undertaken in connection with common
parts, general assembly of the co-owners, how to abide by the law regarding its
organization, manner to decide issues, and questions of compensatory damages
(ex. in the following court opinion: rents by tenants delayed due to a legal proceeding lost by
opponent of landlord). For this interesting case decided by the Swiss High
Court on Nov. 19, 2014, see docket 5A_198/2014.
Estate:
Testate and legal succession: contrary to some other
legal systems, spouses and children cannot be utterly bereft of any right
(except for cause in very rare cases). If a testamentary item states that the
share of one of those legal next of kin is reduced to its legal minimum, what
are the first step to do for said next of kin willing to challenge the
testament ? To request an official inventory, as was made in the following
case. But be careful of the statute of limitations and its computation. (cf.
Swiss High Court opinion of Jul. 6, 2012, 5A_184/2012).
Cancellation of a holograph will: for insanity of the deceased at the time of the writing, or if the writing is not the expression of a free will, or is against the law. The dispositions mortis causa are voidable, and not void. Statute of limitation to file suit: 1 year since cause for cancellation was found out. As for grown up, sanity is presumed. Thus the one who wants to contest the last dispositions bears the burden of proof of insanity. The test is tantamount to a preponderance of the evidence. If the deceased person was mentally ill, insanity is presumed, and the one who wants to maintain the last wills bears the burden of proof of sanity. A medical appraisal is decisive with respect to the burden of proof and with respect to the medical facts. It is eventually up to the court to decide the ultimate question of the validity of the will. For an example in the Swiss High Court jurisprudence: cf. 5A_859/2014, opinion released on March 17, 2015.
Cancellation of a holograph will: for insanity of the deceased at the time of the writing, or if the writing is not the expression of a free will, or is against the law. The dispositions mortis causa are voidable, and not void. Statute of limitation to file suit: 1 year since cause for cancellation was found out. As for grown up, sanity is presumed. Thus the one who wants to contest the last dispositions bears the burden of proof of insanity. The test is tantamount to a preponderance of the evidence. If the deceased person was mentally ill, insanity is presumed, and the one who wants to maintain the last wills bears the burden of proof of sanity. A medical appraisal is decisive with respect to the burden of proof and with respect to the medical facts. It is eventually up to the court to decide the ultimate question of the validity of the will. For an example in the Swiss High Court jurisprudence: cf. 5A_859/2014, opinion released on March 17, 2015.
Landlords and tenants:
Termination of L./T. agreement possible even if a small sum of money, amounting to a trifle, is due by Tenant to Landlord. Good faith exception very restrictively admitted by courts. No extra time given if termination follows a formal notice to pay which notification is compelled by the law (see decision of the Swiss High Court released Nov. 19, 2014, 4A_271/2014).
Injuries:
Swiss federal law providing assistance to injured
victims and to his/her relatives (physical and psychical damages), known in
French by its abbreviation “LAVI” (loi fédérale sur l’aide aux victimes
d’infractions)
Emotional distress and non-pecuniary damage: traffic
accident, driver (not at fault) heavily injured, loss of income, disability,
compensation of emotional distress: as for that last count: physical or
psychical injury as a precondition, has to be fair, taking into account the
breadth of the injury, its type and gravity, its intensity and lasting effects
on the personality as well as on the professional abilities. The comparative faults of the parties are
also relevant (Art. 47 Swiss obligations Code). But bad faith behavior during
litigation is not considered under 47 CO. It could be seized under Art. 49 CO,
which is a more general norm, including all dispositions against the victim’s
personality. All considered, CHF 80’000.- are allocated in this case for
emotional distress. In two other instances, the Swiss High Court retained an
amount of CHF 140’000.- for the emotional distress endured by a victim severely
wounded in a traffic accident like the one here discussed, and CHF 140’000.- as
well for a child, who collided with an iron rod, alongside the slope, while
skiing. Of those amounts are to be
subtracted the amount served by the Swiss accident insurance for breach of
integrity (Swiss High Court opinions, 4A_543/2014, 4A_547/2014, March 30,
2015).
Familiy law:
International Child Abduction & visitation rights:
Swiss Foundation of the International Social Service (
ex.: protection of children, parents’ rights, child abduction, alimony,
international adoption):
http://www.ssiss.ch/en
http://www.ssiss.ch/en
Withdrawal of child visitation rights, or of custody:
only according to art. 8 § 1 and 2 to the Convention for the Protection of
Human Rights and Fundamental Freedoms, and according to art. 310 of the Swiss
Civil Code: of primary concern is the well-being, physical and psychological,
of the child, as well as the proportionality principle. Withdrawal must be the
solution of last resort. Official decisions regarding those matters can be
modified anytime. An instructive case released by the Swiss High Court in Nov.
11, 2014, case 5A_621/2014.
Swiss citizenship eventually acquired after a stay in
Switzerland: there is generally speaking for the children under 18 a right to
entry and to stay with the parent newly Swiss, but there is also statute of
limitations for such a request to stay in the country and to apply successfully
for a resident license. Possibility to avoid the rigor of said statutes of
limitations in case of major family reasons, but those reasons are very restrictive.
See the Swiss High Court decision released Dec 2, 2014, 2C_473/2014.
Alimony for a spouse after divorce: according to Art.
125 al. 1 of Swiss Civil Code, if one cannot expect a spouse to maintain a
correct way of life by his/her own means after termination of marriage, the
spouse in a better financial position may have to pay an equitable
contribution.
This disposition represents the concretization of two
principles: 1) the principle of the financial independence of the former
spouses after divorce, which stipulate that, whenever possible, each former
spouse has to contribute for his/her own needs, and 2) the principle of
solidarity, which means that former spouses have to bear in common 1) the
consequences of the tasks-sharing they determined during marriage, and 2) the
disadvantages occasioned to one of them by the marriage, preventing him/her to
make a living by his/her own means.
Alimony is due if marriage concretely influenced the
financial situation of the creditor spouse. There is even a right – if possible
– for the creditor-spouse to continue to enjoy the same way of life as during
marriage. There is a kind of presumption of such a concrete influence if
marriage lasted at least 10 years (from marriage till separation-in-fact), if a
spouse, while leaving his/her culture, entered in a different one, and if
spouses had common children. But such kinds of marriages do not confer an
automatic right to a financial contribution by the other spouse: the principle
of autonomy is above the right to perceive alimony: a spouse can successfully
ask for alimony only if he/she is unable to make his/her own living and if the
other spouse has enough financial capacity to contribute.
See for an example the Swiss High Court decision
5_A 844/2014, Apr. 23, 2015.
Alimony due to one’s family: failure to pay amounts allocated by the court can be criminally punished if creditor states a claim (art. 217 Penal Code). Intent is needed for condemnation. If not allowed by the court or by alimony-creditor, compensation (with a debt allegedly due by alimony-creditor) is forbidden. Abandonment of a job opportunity or of asset not a defense. Penal court cannot review amount of alimony decided by civil court (cf. Swiss High Court opinion released Jan. 6, 2015, 6B_608/2014).
Divorce: before the judicial decision severing the
matrimonial relationship, a convention can be submitted to the court, signed by
both spouses, expressing their wishes as to the fate of their belongings and
various assets or debts. The idea is to avoid for the spouses the burden to
determine the exact shares of all assets and liabilities. Thus the convention
does not have to reflect exact calculations. The court will accept the
convention under a standard of fairness, in addition just checking if it was
concluded after sound reflection, without any sort of undue influence, and if
the text signed is clear and complete, without more inquiries. If ratified by
the court, the convention becomes part of the judgment of divorce itself. If after signature but before judgment one
spouse wants to retract, it is still doable. After final and executory
judgment, it is much more difficult to succeed in trying to modify said
convention. Essential mistake, fraud, duress, unconscionability can be argued,
though (see for an example the Swiss High Court opinion in the case
5A_772/2014, March 17, 2015).
Divorce between a Swiss citizen and a foreign citizen:
is the foreign former spouse allowed to stay in Switzerland? Conceivable if
matrimonial link did last at least 3 years and if integration in Switzerland
was achieved. The 3 years period has to be considered at the same time as an
effective cohabitation in Switzerland and ends when the spouses cease to live
together. Only the years while married are taken into account, and not the span
of time of a wedding-preceding partnership. The 3 years period can be cut by
periods of time spent abroad if the total span of time spent in Switzerland
happens to be more than 3 years. Living under the same roof is exceptionally
not required if major reasons can be alleged (familial or professional for
instance) but the family community has to be maintained during the
severance-in-fact. Besides, except application of a bad faith exception, Swiss
courts admit that several period of time spent in Switzerland can be added and
counted to satisfy the 3 years period, but again a genuine matrimonial
community has to be alleged and proved.
As for the second and last condition of a successful
integration in Switzerland, the number of criteria to be satisfied is open, all
the circumstances are taken into account. Of relevance: to abide by the Swiss
Constitution and Swiss laws, to show economic, social and cultural integration,
to speak the language of one’s place of abode in Switzerland, to know some
about the Swiss way of life, to avoid to be (for a long time) on welfare.
(Swiss High Court, August 27, 2014 opinion, 2C_14/2014).
Social insurances and Private insurances:
Health insurance: in case of difficulty with a health
insurance (the mandatory one or the non-mandatory complementary ones, as well
as with the daily indemnities served by health insurances, in any
situations when insured is not (yet)
represented by a private lawyer or by a legal insurance company): free help
from the Ombudsman of Health insurance is available countrywide. For conditions
and various other information, have a look at its website:
As for the non-mandatory complementary health
insurances, it is of utmost importance to fill the health-questionnaire
completely, faithfully, with details, to avoid cancellation of the insurance
contract by the company for failure to state precisely the past and present
medical condition. Those questionnaires are provided by the company before its
acceptance (or refusal) to contract. A contractual reserve linked to an ongoing
or past medical condition may be proposed by the company, the contract being
otherwise accepted. For a case decided by the Swiss High Court, cf. opinion
released Jan 13, 2015, 4A-577/2014.
Generally speaking, in all social insurances questions
or issues, article 27 of the Federal law about the general part of social
insurances compels said institutions to explain fully and in an understandable
manner their positions, calculations, and to answer to specific questions, even
without an ongoing litigation.
Private insurances in general, civil liability
insurances, life insurances, mandatory accident insurances: as for the health
insurance, Ombudsman services are available:
Banking:
Banking: there is also Ombudsman services:
Payment systems:
Promissory note: the Swiss equivalent is the “billet à
ordre”, the statutory provisions applicable being art. 1096 to 1099 Federal
Code of Obligations; conditions of validity (cf. Swiss High Court, opinion
released Nov. 2, 2010, 4A_460/2010).
Criminal law:
Can a corporation or an artificial legal entity be
considered a victim, suffering an economic loss, within the frame of the
criminal proceedings it has initiated? Yes, if the penal statute at stake
protects said artificial entity (as well as individuals). Thus, for example, a
corporation cannot be victim of a menace (it cannot suffer fear), so it cannot
file a criminal complaint about that menace, and cannot recover damages for
that menace in an ongoing criminal proceeding.
But it can be victim of a coercion (aims at altering its corporate
behavior), allowing it to sue criminally, to
claim monetary damages in the criminal proceeding, and allowing it to
appeal till the Swiss High Court (cf. opinion by the Swiss High Court, released
Dec. 4, 2014, 6B_261/2014).
Procedure: Forms which can be used to seize a court:
Procedure: international case, jurisdiction in
Switzerland or abroad? (In the first of the two cases, Switzerland or Sweden,
an E.U. member?): double-pertinence of facts test: 1) In Switzerland, a case is
deemed international (before a court or before an arbitral forum) if there is a
sufficient nexus with another country. 2) In contractual matters, the lex fori
determines whether the Judge bears the burden of establishing facts in order to
determine if her court has jurisdiction, or whether she can or shall ask the
litigants to bring the necessary evidences before her court. 3) The facts
appropriate to determine whether the court has jurisdiction can be either
“simple-facts” or “double-pertinent facts”. Facts are qualified as
“simple-facts” when they are useful only to state jurisdiction. Those have to
be proved when the Judge determines if his court has jurisdiction or not (if
defendant has preliminarily contested jurisdiction). On the other hand, facts
are of “double-pertinence” when they are useful for determining jurisdiction as
well as for determining the merit of the case at hand. Accordingly, in a
“double-pertinence” case, the Judge determines jurisdiction only based on the
claimant’s allegations, legal claims and conclusions. The objections of
defendant are not considered for determining jurisdiction, even if it is found
later, during administration of evidences, that there is indeed no jurisdiction
(claimant did choose the forum, he does not have a right to choose again,
either the adequate general forum or another special forum). Ex.: existence of
a contract, tort committed or not: double-pertinence; place where tort
occurred, domicile of a party, place of business: simple fact, which has to be
proven at the inception of the case for the court to accept its jurisdiction
(that place is irrelevant to determine the merits of the case). 3)The
double-pertinence theory does not apply when jurisdiction of an arbitral court
is contested: a party cannot be compelled to endure that such a court
determines litigated rights and obligations if they are not covered by a valid
arbitral agreement. 4) Interpreting Art. 60 of the Swiss Code of Civil
Procedure, the Swiss High Court held that the parties have to collaborate in
alleging facts and bringing evidences, bearing on jurisdiction, before the court
(cf. Swiss High Court opinion, June 25, 2015, 4A_703/2014, and June 26, 2015,
4A_73/2015).
Procedure: "Conclusions": the remedies the
court is asked to pronounce in a particular case. They have to be precise
enough and carefully carved in order to avoid an ab ovo dismissal, without
consideration of the merits of the case at hand. But a so-called
"principle of confidence" compels the court to interpret the
conclusions in the light of the arguments developed in the written pleadings. The
forbidding of excessive formalism urges the court to avoid too high a threshold
in order to receive them: if the reading of the pleading allows to understand
what plaintiff/appellant or the adverse party is asking for, the court has to
accept said conclusions as formulated (cf. various Swiss High Court decisions,
notably ATF 4A_688/2011 c. 2 (Apr. 17, 2012), ATF 138 III 425, ATF 2C_861/2015
c. 1.2. (Feb. 11, 2016)). For a kind application of these principles, cf. Swiss
High Court 5A_866/2015, c. 1.2. (May 2, 2016), a case about the restructuring
of a venture virtually in bankruptcy.
Procedure: if the conclusions of the pleadings are libeled in foreign currency, the amount has to be converted in Swiss francs. The relevant day is the day when said pleading is filed with the Swiss court. Besides, according to Article 84 of the Swiss obligations Code, a monetary debt has to be paid to creditor in the currency chosen by the parties in their agreement. If the case goes to court, the Swiss Judge is compelled to allocate the amount – if due – in the chosen currency, thus not necessarily in Swiss francs (cf. Swiss High Court opinion of March 12, 2015, 4A_555/2014).
Legal
research (U.S.):
Constitution of the U.S., and more generally America’s
Historical Documents in the National Archives:
U.S. Supreme Court decisions:
Court Rules:
http://www.supremecourt.gov/ctrules/ctrules.aspx
(Motions and Applications: Part. V; Briefs on the Merits: Part. VI; Practice
and Procedure: Part VII; Costs: Rule 43).
New link: https://www.supremecourt.gov/filingandrules/rules_guidance.aspx
New link: https://www.supremecourt.gov/filingandrules/rules_guidance.aspx
E-mailing a brief does not obviate the
requirement that a hard copy be timely filed.
Emergency situation: application
for a stay
An example of a Brief for petitioners: Baker Botts
L.L.P. v. ASARCO LLC (no 14-103, 2014-2015 Supreme Court Briefs): http://www.americanbar.org/publications/preview_home/14-103.html
Guide for prospective indigent petitioners for writs
of certiorari (October 2014), including instructions for completing forms and
the forms themselves:
http://www.supremecourt.gov/casehand/guideforifpcases2014.pdf
Seton Hall (Federal) Circuit Review:
The Seton Hall Circuit Review aims to publish short and long scholarly articles analyzing important recent developments in all areas of the law at the court of appeals level. In addition:
First Impressions: contains brief summaries of issues of first impression identified by federal court of appeals opinions
Current Circuit Splits: contains brief summaries of circuit splits identified by federal court of appeals opinions
http://scholarship.shu.edu/circuit_review/
Seton Hall (Federal) Circuit Review:
The Seton Hall Circuit Review aims to publish short and long scholarly articles analyzing important recent developments in all areas of the law at the court of appeals level. In addition:
First Impressions: contains brief summaries of issues of first impression identified by federal court of appeals opinions
Current Circuit Splits: contains brief summaries of circuit splits identified by federal court of appeals opinions
http://scholarship.shu.edu/circuit_review/
United States Code (from U.S. House of
Representatives, Office of the Law Revision Counsel):
Code of Federal regulations (CFR):
Electronic Code of Federal Regulations (e-CFR, not an
official legal edition of the CFR, but updated on a daily basis). Contains also
an Agency List with references to the CFR:
Government publications, including a parallel Table of
Authorities and Rules for the Code of Federal regulations and the United States
Code: U.S. Government Publishing Office
California Supreme Court published/citable Opinions
(here Slip Opinions: Slip Opinions
are as-filed versions of opinions certified for publication or ordered
published; they do not reflect enhancement, editing, and correction for the Official
Reports)
California Courts, Online Self-Help Center
California Courts, self-help glossary:
California courts: Rules of Court & Code of
Judicial Ethics
Forms: Browse All Forms (ex: complaint-contract):
Free forms (Cal & Federal): Forms by Topic: http://www.saclaw.org/pages/forms-page-topical.aspx
California Legislative Information (including the
state Constitution, the 29 Codes, Bill information, a Tracking by Keyword
system, a “My Favorites” tool allowing to store bills and codes, eliminating
the need to perform repeated searches)
https://leginfo.legislature.ca.gov/faces/loginClient.xhtml
https://leginfo.legislature.ca.gov/faces/billSearchClient.xhtml
https://leginfo.legislature.ca.gov/faces/billSearchClient.xhtml
Office of Administrative law (California), including
California Code of Regulations (CCR), Code of Federal Regulations, United
States Code
https://govt.westlaw.com/calregs/Index?transitionType=Default&contextData=%28sc.Default%29
http://www.oal.ca.gov/rulemaking_process/
http://www.oal.ca.gov/rulemaking_process/
The Executive Orders of the Governor of California:
State Agencies Index (California): about one hundred.
http://www.ca.gov/Agencies
http://www.ca.gov/Agencies
California Agency Reports, a website listing all
reports required by statute to be prepared and filed by state and local
agencies with the Legislature or Governor
Sacramento business journal (including a local
businesses and services directory)
Small Claims Court (lawsuit for $ 10,000 or less
(individuals), for $ 5,000 or less (business), including help to write a demand
letter, court forms, how to file the claim, how to serve the claim, the
procedural steps and collection, through Form EJ-130, Writ of Execution (to
take to the sheriff’s office). After judgment paid in full, an Acknowledgment
of Satisfaction of Judgment must be file out, to avoid to pay the judgment
debtor damages and a penalty.
Cases for $ 25,000 or less: court forms, cover sheet,
fee waiver, service of process, default, need for a lawyer in California
Cases for over $25,000:
Bankruptcy: in general, Chapter 7 (for individuals),
Chapter 11 (reorganization proceeding), Chapter 13 (like Chapter 11, but for
individuals), Exemptions, Automatic stay (limited protection), need for a
lawyer in California
Legal Research: need to “Shepardize” ™ (up to date the
legal research, a must to be accurate, “secondarily” to avoid malpractice):
online tools including those in the websites above, and commercial websites
abound.
Websites providing free access to court decisions: cf.
Library of Congress, Databases and Internet resources (Google Scholar, Public
Library of Law, Findlaw, Justia, Leagle, Cornell Institute, Law Library of
Congress):
Free Law Library: The Public Library of Law (PLOL),
Free Account Required, including Legal
Forms (by states, for a fee)
Of interest: Internet for Lawyers
University of the Pacific McGeorge School of Law (Sacramento), Library:
Database List (ID needed).
Research Guides: e.g. a) Global Lawyering Skills (including legal research and legal writing), b) How to compile a California Legislative History, c) Creating a Table of Authorities in Microsoft Word (for Mac).
Web Searching:
Hints:
Use more than one search engine (no individual search engine searches the whole web)
Use advanced search features if available
Do multiple searches on the same topic
Don't just look at the first page of results
Some search engines:
Google, Google Scholar, Google Books
Ask
Bing
(Blekko: has joined the IBM Watson Group)
DuckDuckGo
Yahoo
http://www.mcgeorge.edu
http://mcgeorge.edu/Library.htm
https://libguides.mcgeorge.edu/c.php?g=448442&p=3060838
Search for California (and Federal) Legislation:
Cal Legislative Counsel search engine, Cal Legislature's search engine, Cal State Senate search engine
(Former Thomas search engine (Library of Congress), now replaced by Congress.gov, the official website for U.S. federal legislative information)
http://www.calbar.ca.gov/AboutUs/Legislation/SearchforLegislation.aspx
https://www.congress.gov/
Santa Clara University School of Law:
KeyCite-Online
Alternative to Shepardizing
Make Sure Your Case is Good
Law by Checking Citations in KeyCite®
KeyCite, West's citation
research service, is available through the Law Library's subscription to WestlawNext.
You can use KeyCite at any of the Library's public computers to view the
history of a case, statute, regulation, or administrative decision to help
determine whether it is good law and to retrieve citing references.
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