Now it gets finally and specifically in the group initiative

Should have to comply with Swiss companies abroad human rights and environmental standards binding? The debate has been going on for years. But now the Parliame

Now it gets finally and specifically in the group initiative

Should have to comply with Swiss companies abroad human rights and environmental standards binding? The debate has been going on for years. But now the Parliament must decide by the end of the spring session in nearly three weeks, as it was with the group initiative is designed to handle. The discussions start on Wednesday in the national Council. These options to the Parliament:

1. The Initiative without a counter-proposal

reject the Initiative would next fall to a vote. You want Swiss companies ensure in all its operations, to respect human rights and environmental standards. This may require you to prove the so-called due Diligence. Failing that, they should be liable for damages, through its subsidiaries and certain suppliers.

2. No to the Initiative, Yes to the counter-proposal of the Council of States

the Initiative would next fall to a vote. This counter-proposal that large companies create transparency for dealing with human rights, environmental or corruption – with Reports. Care tests are intended for dealing with child labour and with four minerals. In the case of the liability of the Council of States wants to change anything.

3. No to the Initiative, Yes to the counter-proposal of the national Council of

Then the Initiative would be pulled back. This counter-proposal takes the basic concept of the Initiative, restricts it, but it is strong. For example, there are considerably fewer companies are affected.

lawyers argue over liability for corporations

An important Element, with the Initiative of Swiss companies abroad as to the observance of human rights wants to force, is the liability law. Or as the founders say: "Whoever causes damage should pay." In the run-up to the debate is well argued but whether the Initiative creates a new liability. Or whether corporations can be made in Switzerland for the Offences of their subsidiaries be held liable.

Specifically, it is the so-called business Mr liability: a Swiss law that has existed for decades. It States that a business may be liable to Mr for damage caused by its auxiliary person. An example: The employees of a painter business is destroyed during the work the expensive carpet of a customer. Here is a lawsuit against the business is possible.

Christoph Bühler is a specialist in business law and has written on behalf of the initiative's opponents are an opinion on the group's initiative. He says: "The Lord of liability is not tailored to the recognised legal structure of the group simple." Subsidiaries are not a "tool" to which the mother readily as a business Lord had to stand up, but rather stand-alone company with its own responsible to boards of Directors.

"The Lord of liability could also be applied to companies applied": Gregor Geisser, a consultant to the initiator. Photo: PD

a different opinion Gregor Geisser, lawyer and legal Advisor to the Committee, is The principal liability was created originally for natural persons. "The Initiative requires, but nothing Exotic: It is now the prevailing doctrine that the principal's liability could also be applied to companies applied."

In the expert dispute, the Federal office of justice to interfere. Already in 2018, it noted in a working paper: The principal's liability is in accordance with the predominant opinion on the group conditions apply. Also, the Federal court in favour of this under certain conditions.

However, it is a theoretical discussion. The business's liability has never been applied to corporations. The Federal court of justice has held in 1992 in one case only, that the existence of a subsidiary alone does not application of the liability – and subsequently counted, what would have to be for an application to possibly exist. The court announced, among other things, instructions in the group to the daughter.

"The hurdle now seems so large that it does not discourage potential claimants from taking court action in Switzerland."Hans-Ueli Vogt

More the Swiss Federal office of justice made it clear on demand: His statements of 2018 were still correct – but only if mother and daughter had their seat in Switzerland. A damage, a step through a subsidiary in a foreign country, the business's liability because of the provisions of the international private law is not applicable. Then the foreign law applies to a lawsuit in Switzerland.

The current Situation in Switzerland, creating uncertainty, says the initiators consultant Gregor Geisser. His clients wanted to change that. The same goal, the national Council followed with his counter-proposal to the Initiative. Hans-Ueli Vogt (SVP), Professor of business law and co-author of the counter-proposal of the national Council, says: With the counter-proposal would re-apply, that Swiss law is applicable. And it would be written "black on white" that the principal liability is actually also, if a group is to be made by parent for damage by a subsidiary can be held liable. In comparison to the current legal situation, he stated: "The hurdle now seems so large that it does not discourage potential claimants from taking court action in Switzerland." The counter-proposal of the national Council to do it plaintiffs a little easier.

Has co-authored the counter-proposal of the national Council: Hans-Ueli Vogt (SVP). Photo: Peter Klaunzer (Keystone)

In comparison to the conventional business, Mr liability, the national Council wants to limit the liability for corporations. They should apply only to foreign subsidiaries controlled by the parent, and only when violations of environmental regulations and people have caused right damage to life, body or property. The Initiative calls for significantly more. The founders would accept the counter-proposal of the national Council anyway.

but Not the counter-proposal, the Council of States has decided. "We want to be at the liability of the Status quo," says Beat Rieder, has submitted the proposal. And also, the Federal office of justice holds, with the counter-proposal of the Council of States all remain at the liability of the Old.

Liable for a death in Zambia?

The woman died of heart failure. That was six years ago. Her husband was the exhaust fumes from the nearby copper smelting plant blamed for the sudden death of his wife and brought an action against the operator. In this case, from the African country of Zambia has, in the meantime, but also a Swiss politician. Because he is presented by the initiators as an example of why it needs the group's initiative. The shares of the operating company majority-owned by the multinational Glencore, based in Switzerland.

What is the business's liability for this case? According to Gregor Geisser, legal adviser to the initiator, would have to have taken the parent company in violation of the due diligence, if any, violations of international environmental obligations by the subsidiary company in the purchase. Glencore denies it.

And what would it mean for the case of Glencore, when the Initiative or would be accepted against the proposal of the national Council? Geisser says: The Initiative is to bring clarity about what care from Glencore was expected, and make sure that the group-like in the case of non-compliance. The way for a lawsuit in Switzerland would be a little better lit. Difficult for you to stay, however.

Like the suit of the husband against the operator of the plant, in Zambia, is open. The judgment of the highest court of the country is pending.

Created: 03.03.2020, 10:46 PM

Updated Date: 03 March 2020, 11:06

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