“PIFSS’ primary case is that in relation to all of the Schemes above, Ms. Al Wazzan was used by Mr. Al Rajaan as his nominee, in setting up companies and bank accounts in her name through and/or in to which Secret Commissions were paid. It claims that the acts and omissions carried out by him in her name are acts for which he is liable. She is joined to these proceedings to ensure that PIFSS’ obtains effective remedies, including under Article 22 of the Kuwait Public Property Law.”
“4. Antoine NASRALLAH criticises the Court for having executed the challenged letter rogatory, even though it infringes Switzerland’s sovereignty and security, since international mutual legal assistance proceedings in criminal matters, concerning the transmission of the same documents, are still pending. … 4.2 In this matter, PIFSS is a plaintiff in Swiss criminal proceedings No. [] against [] in connection with possible unlawful commissions received by the latter during his term of office as Managing Director. In the context of these proceedings, the Federal Criminal Court considered that PIFFS was a quasi-state entity, so that there was a concrete risk that it would transmit to the State of Kuwait the documents of the proceedings, in particular those relating to bank account number [] opened with the [] PIFSS’s access to the criminal file was therefore limited, in that it could not collect copies of these documents. Based on the above proceedings, criminal proceedings were initiated against [] in Kuwait. In January 2021, Kuwait filed a request for mutual legal assistance in criminal matters with the OAG (proceedings No. []), aimed in particular at obtaining the above-mentioned bank documents. [] opposed this request, the fate of which has not yet been decided. PIFSS has also initiated civil proceedings in the United Kingdom against [] and [] relating to the same set of facts. At the request of the respondent, the United Kingdom has requested mutual legal assistance in civil matters, which also concerns the same bank documents. In these specific circumstances, it appears that the Swiss civil courts cannot, as it stands, rule on the disputed request for mutual assistance in civil matters, as this would render the previous mutual legal assistance procedure in criminal matters, No. [] meaningless and would probably be contrary to the fundamental principles of Swiss procedural law. Contrary to what the Respondent maintains, the fact that the OAG had authorised the transmission of bank documents relating to another bank, according to its allegations, is not in itself decisive, as this part of the dispute is not known and the outcome of the mutual legal assistance procedure No. [] is not known either. Furthermore, authorising the transmission of the documents that are the subject of the challenged Order would have the consequence that PIFSS would probably have full access to them in the English proceedings, even though the Federal Criminal Court limited this access in in view of the concrete risk of transferring the context of criminal proceedings SV [] the information and documents to the State of Kuwait. Thus, as long as the Swiss criminal courts have not made a final decision on whether to grant or refuse to hand over to the State of Kuwait the documentation relating to account No. [] the Swiss civil courts cannot grant the mutual legal assistance in civil matters requested for the transmission of these same documents in the context of proceedings on the merits, which are also between PIFSS and Fahad Maziad AL-RAJAAN and which relate to an identical set of facts, at the risk of rendering a contradictory decision with irreparable consequences. … It thus appears inadmissible, from the point of view of plausibility, to execute the disputed letter rogatory as it stands, even though the mutual legal assistance proceedings No. [] are still pending before the Swiss federal criminal courts. Consequently, the challenged Order will be annulled and the request for mutual legal assistance in civil matters in civil matters made by THE SENIOR MASTER OR THE SENIOR COURTS OF ENGLAND AND WALES on7 February 2022 rejected.”
“For the sake of completeness, it should be noted that the Respondents, if they consider that this is necessary to safeguard their interests, will retain the possibility of applying to the British court hearing the action brought by [PIFSS] to take measures similar to those adopted by the FCC to prevent the aforementioned company from making copies of certain bank documents.”
“I understand that Ms Al Wazzan’s Swiss lawyer Jean-Marie Crettaz has also accessed and received full copies of the SFPO File, including on18 May 2016 , and that he most recently requested the file on14 October 2022 . I infer that Ms Al Wazzan’s English solicitors (PCB Byrne) would also have received copies of the SFPO File, whether from Mr Crettaz or from Mr Al Rajaan’s lawyers. That inference is further supported by Ms Al Wazzan having referred to, and deployed information in relation to documents within the SFPO File in response to PIFSS’s application for asset relief and disclosure from her dated13 March 2020 (which was compromised on the basis of undertakings), including (inter alia) by her evidence in that application referring to various SFPO orders from the SFPO File; and PCB Byrne’s letter of27 May 2020 making specific references to documents and document folders in the form held within the SFPO File (page 22 of MW23).”
“The United [States] Supreme Court famously said in Hilton v Guyot, a case on the recognition of foreign judgments: “‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.”
“Section 2 Public Proceedings Art. 69 Principles 1 Proceedings before the court of first instance and the court of appeal, together with the oral passing of judgments and decrees of these courts shall, with the exception of the judges’ deliberations, be conducted in public. … 3 The following proceedings are not conducted in public: a. preliminary proceedings, with the exception of public announcements made by the criminal justice authorities; b. proceedings before the compulsory measures court; c. proceedings before the objections authority and, in cases where they are conducted in writing, before the court of appeal; d. summary penalty order proceedings. …” “Section 3 Confidentiality, Information to the Public, Communications to Authorities Art. 73 Duty of confidentiality 1 Members of criminal justice authorities, their employees and experts appointed by criminal justice authorities shall treat as confidential information that comes to their knowledge in the exercise of their official duties. 2 The director of proceedings may require private claimants and other persons involved in the proceedings and their legal agents, under caution as to Article 292 SCC 18, to maintain confidentiality with regard to the proceedings and the persons concerned if the object of the proceedings or a private interest so requires. A time limit must be placed on this obligation.”
“a. persons suffering harm; b. the person who has reported the offence; c. witnesses; d. persons providing information; e. expert witnesses; f. third parties who have suffered detriment due to procedural acts.”
“Art. 101 Inspection of case documents in pending proceedings 1 The parties may inspect the documents relating to the criminal proceedings at the latest following the first interview with the accused and the gathering of the other most important evidence by the public prosecutor; Article 108 is reserved. 2 Other authorities may inspect the case documents if they need to do so for the purposes of pending civil, criminal or administrative proceedings and inspection is not contrary to any overriding public or private interests. 3 Third parties may inspect the case documents if they claim to have an academic or other legitimate interest in doing so and inspection is not contrary to any overriding public or private interests. Art. 102 Procedure relating to applications to inspect case documents 1 The director of proceedings decides on whether case documents may be inspected. He or she shall take the measures required to prevent abuses and delays and to protect legitimate interests in confidentiality. 2 The case documents must be inspected at the offices of the relevant criminal justice authority or those of another criminal justice authority in mutual assistance proceedings. Normally they shall be delivered to other authorities or the legal agents for the parties. ...”
“It will be noted that the procedures against Mr. Al Rajaan and Ms. Al Wazzan had been running since 2012. In the course of these proceedings the SFPO requested bank files. Banque Pictet and Mr. Bertherat were – according to my instructions – aware of the proceedings as early as 2014. Since paying retrocommissions to the employee of an investor, knowing or assuming that they would not be brought to the attention of his principal, is illegal according to Swiss law, it is certain that the bank and its employees would have assessed their own risk immediately. The eventuality of a criminal investigation being directed against them did in fact materialise in 2020. The relevant parties have been on notice at the latest since 2021. There has therefore been ample time for all participants to co-ordinate their defence, if they chose to. Therefore, it continues to be my view that authorities would rate the risk of collusion low and regard collusion as highly unlikely.” iii) The applicants rely on a decision on the Swiss Federal Supreme Court, referred to in Professor Niggli’s reply report (Swiss Federal Supreme Court, decision 1B_350/2020 of28 May 2021 ). Professor Niggli quotes ‘consideration 6.3’ of that decision: “According to the case law of the Federal Supreme Court, information from criminal proceedings in Switzerland may not be disclosed to the state requesting mutual assistance in parallel proceedings as long as the mutual assistance proceedings have not been concluded with legal effect. This is in the private interest of the accused person as well as in the public interest of enforcing the law on mutual assistance.”
“1. Any person who carries out activities on behalf of a foreign state on Swiss territory without lawful authority, where such activities are the responsibility of a public authority or public official, any person who carries out such activities for a foreign party or organisation, any person who facilitates such activities, shall be liable to a custodial sentence not exceeding three years or to a monetary penalty, or in serious cases to a custodial sentence of not less than one year. 2. Any person who abducts another by using violence, false pretences or threats and takes him abroad in order to hand him over to a foreign authority, party or other organisation or to expose him to a danger to life or limb shall be liable to a custodial sentence of not less than one year. 3. Any person who makes preparations for such an abduction shall be liable to a custodial sentence or to a monetary penalty.”
“Considerations: 1. According to Article 271(1) StGB the offence of unlawful activities on behalf of a foreign state is committed by any person who carries out activities on behalf of a foreign state on Swiss territory without lawful authority, where such activities are the responsibility of a public authority or public official. The cantonal supreme court concluded that the appellant had fulfilled all constituent elements of the actus reus under this provision. In order to avoid hearing people according to mutual assistance procedures, Attorney-at-law and Notary Public S. had himself clarified the matters observed by third parties by questioning them himself so that he could subsequently provide evidence concerning them as a witness within criminal proceedings against B. before a foreign court for the benefit of B. However, according to Swiss legal doctrine the determination of the facts by hearing eyewitnesses or witnesses who have heard relevant facts constitutes a form of taking of evidence that is reserved to the courts. The state has a general interest in resolving judicial proceedings by judgment, and hence in the enforcement of the law. Accordingly, the taking of evidence in another country for this purpose constitutes an act carried out in the interest of the foreign state, and hence on its behalf. The appellant had knowingly aided and abetted these actions, in particular by involving Attorney-at-law and Notary Public S. 2. a) The appellant alleges that this case does not involve any act that falls to an authority or an official. b) According to the literature and the case law, any activity falling to an authority or an official within the meaning of Article 271(1) StGB includes – irrespective of whether an official actually took any action – any activity that, considered in itself, i.e. having regard to its nature and purpose, is characteristic of official activity; the key issue is accordingly whether it is official on account of its nature, and not the offender who actually carried it out ... c) Moreover, contrary to the appellant’s assertions, the cantonal supreme court does not draw a distinction between allegation procedures and evidentiary procedures, which is in any case not recognised within a criminal trial; moreover, it does not presume that everything that takes place within a criminal trial, including in particular the procedure relating to evidence, is without exception a matter for the state. On the contrary, it limits itself to (correctly) asserting that the taking of evidence, for example by the oral questioning of eyewitnesses and witnesses who have heard relevant facts, is – under Swiss law and according to Swiss legal doctrine – reserved to the courts, law enforcement authorities or prosecutors. … Accordingly, there cannot be any doubt that the hearing of persons within the ambit of judicial proceedings is by its nature an official act; this is generally recognised ... The reliance on Guldener (GULDENER/MILLER, in International Co-operation in Litigation: EUROPE, Hans Smit Ed., The Hague 1965, p. 360 to 362) is not of any benefit: GULDENER does not refute this standpoint but rather asserts that a person making a statement cannot be heard orally in private (p. 365); the part of the argument referred to by the appellant deals exclusively with the submission of documents within the trial, and it is not explained to what extent it is possible to doubt the prevailing opinion regarding this aspect. In contrast to the hearing of witnesses, the submission of documents involves acts by parties that do not require any official action; the prevailing opinion that the hearing of persons for judicial purposes falls under the exclusive competence of authorities and officials cannot therefore be overturned by the reference to the presentation of documentary evidence. d) If the sole consideration is the actual nature of the activity carried out, and not the offender who did so, contrary to the appellant’s assertions the fact that neither S. nor B. supposedly exercised any coercion is immaterial; in many cases, there will have been no coercion precisely because the official act reserved for a Swiss state body was carried out by another person; as such, Article 271(1) StGB would be rendered practically a dead letter if coercion on the part of the offender were to constitute a prerequisite for its applicability. As the cantonal supreme court rightly held, S. was not simply carrying out preparations in order to be heard as a witness but rather, in order to be able to provide any witness testimony at all, for this purpose clarified himself, with the assistance of B., facts of which he was unaware, acting in the manner of an investigative body by orally questioning witnesses; according to the findings of the cantonal supreme court, he did so with the intention of avoiding these persons being heard by a court according to mutual assistance procedures, which would not have resulted in the outcome desired by B. He therefore carried out activities that were not merely preparatory for the proceedings, but that rather fell to a state body, as moreover his activities were portrayed when he was heard by the Australian court.”
“59 I am instructed that in Kea Investments Ltd v Eric John Watson[2020] EWHC 2599 (Ch) , the court appeared to accept that contempt applications will rarely be appropriate or necessary, but that they remain possible. I am further instructed that in Bird v Hadkinson [2000] C. P. Rep 21 Neuberger J held that “if one has the benefit, as the applicant did, of an order requiring disclosure, and one has reasons, justified as it turns out, to believe that it has not been complied with, then the obvious course is to apply for committal, or for other relief, appropriate for contempt. An order the court makes on a contempt motion is normally not primarily to punish a contemnor, but to ensure compliance with the order, as far as the court can. It seems to me that is what the applicant was seeking to do in the present case.” 60 I am instructed, finally, that “in Olympic Council of Asia v Novans Jets LLP and Ors[2023] EWHC 276 (Comm) , the Court (Foxton J) cited and considered Kea (at [55] and [56]) and accepted that there may be circumstances, although they are likely to be rare, in which the Court would make a coercive order amenable to the contempt jurisdiction in relation to an order for disclosure made for the purposes of the Court’s adjudicative jurisdiction”, and, furthermore, that “Foxton J did not accept that a standard order for disclosure has, on an inchoate basis, the potential to form the basis for an order for committal simply by asking the court to waive the requirement for a penal notice.””
“If a party has failed to comply with its obligations under this Practice Direction including by— … (2) failing to discharge its Disclosure Duties; or .. the court may adjourn any hearing, make an adverse order for costs or order that any further disclosure by a party be conditional on any matter the court shall specify. This provision does not limit the court’s power to deal with the failure as a contempt of court in an appropriate case.”
“Discovery in the course of an action is an interference with the right of privacy which an individual would otherwise enjoy to his own documents. As a result of the public interest in ensuring that all relevant information is before the court in adjudicating on the claim in the action that right of privacy is invaded and the litigant is forced under compulsion by the process of discovery, to disclose his private documents. But such invasion of privacy being only for the purpose of enabling a proper trial of the action in which the discovery is given, the court is astute to prevent a disclosure so obtained from being used for any other purpose.”
“… decisions of the Swiss Federal Department of Justice and Police (“FDJP”) — an administrative, non-judicial body — indicate that Swiss law does not preclude the voluntary production of documents by a private party and that “voluntary” is defined broadly to include the production of discovery so long as the party faces only procedural consequences rather than criminal sanctions for its failure to produce. (See Hempel Decl. ¶¶ 12-21). In Application to Grant Authorization Concerning the Surrender of Documents in an English Civil Proceeding, April 10, 2014, VPB/JAAC 2016.3, pp. 32-37 (Docket No. 124, Ex. 1 (“April 10, 2014 Decision”)), for example, the FDJP found that there was no Article 271 violation “if no criminal sanctions are threatened in the event of a refusal to cooperate [with the discovery order].”
“Recent OAG statistics have also shown that prosecution for violations of the Swiss Blocking Statute is a concrete risk. Between 2014 and 2018, the OAG opened twelve criminal proceedings for breach of Art. 271(1) SCrC, which resulted to date in the issuance of: • Two indictments (i.e. requests for trial before the FCC); • Four penal ordinances (with sentences to conditional penalties of 40 to 120 days amounting from CHF 30 to 1’000 each, and immediately payable fines from CHF 300 to 500, plus costs proceedings); and • Three acquittals. Such cases related to the direct service of foreign judicial documents (in particular, summonses to appear before foreign courts, foreign claims for payment and foreign bankruptcy decisions) by private individuals (some of them foreign lawyers) to companies and/or individuals located in Switzerland, as well as to the hearing of witnesses on Swiss soil by foreign individuals (some of them being foreign public officials).”
“81. Art. 271 § 1 SPC prohibits, in particular, the taking of evidence on Swiss territory by foreign officials and attorneys as well as the direct service of documents by mail or through Swiss lawyers. 82. Even though the exact scope of Art. 271 SPC gives raise to discussions among legal scholars, it is well established that a party to a foreign proceeding may voluntarily submit to the foreign court evidence that is already in the possession of said party in order to support its pleadings, provided that the disclosure is not inconsistent with third party secrecy rights and/or in violation of data protection laws. Should the documents be protected by Art. 47 BA and/or business or trade secrets and/or data protection law, then production must be ordered by a Swiss court, unless the client has validly waived its privacy rights, as explained in §§ 55 seq. hereinabove. 83. Under Swiss law, a unilateral order of a foreign court seeking to compel the release of documents or information from Switzerland without the participation or consent of the Swiss authorities would be an infringement of Swiss sovereignty even if the documents and information concerned are not covered by Art. 47 BA or data protection rules. Under Swiss law, to compel a party or a third party custodian of records in Switzerland to produce information or documents, a foreign court must use the available proceedings for international legal and/or administrative assistance, thereby requesting the competent Swiss authorities to exercise their judicial power. 84. For the same reason, a foreign court could not compel the live testimony of Swiss-resident witnesses. 85. Art. 271 SPC provides that a party seeking to take evidence or conduct discovery in Switzerland without proceeding under the Hague Evidence Convention may request authorization from the Swiss authorities to perform acts that otherwise would fall under Art. 271. Such authorization must be obtained from the Swiss Federal authorities, and is granted only in exceptional circumstances. … 86. By disclosing information as described in SS 82 and 83 hereinabove outside of proper legal assistance proceedings, the bank’s officers and employees would violate Art. 271 SPC and expose themselves to prosecution, incarceration and/or monetary fines under Art. 271 SPP. The employees, officers or representatives of the bank could not avoid this proscription by turning over the documents to their colleagues in a foreign subsidiary for the purpose of production in foreign proceedings because it is the act of facilitating the improper production abroad that constitutes the violation of Art. 271 SPC. Violations of Art. 271 SPC are prosecuted in Switzerland and have resulted in conviction and criminal sanctions. 87. Art.271 SPC is not a “blocking statute” intended to thwart non-Swiss discovery; it merely ensures that actions in aid of foreign proceedings are conducted through official Swiss channels (those that would be applicable to Swiss domestic matters). Parties to domestic Swiss proceedings are subject to similar restraints, in that domestic Swiss discovery also must proceed only through judicial auspices (e.g., parties to domestic litigation must apply to the court to compel the production of documents held by third parties or held by a party but protected by banking secrecy or other secrets). Likewise, Swiss law imposes, under Art. 299 SPC, criminal penalties upon persons acting in Switzerland who violate the sovereignty of other nations, for example, by issuing judicial orders directing actions be taken on foreign soil (e.g., gathering evidence, service of process). Instead, Swiss courts must act through international treaties, like the Hague Evidence Convention.”
“Anyone who discloses information concerning third parties that is protected by Swiss public policy [“ordre public”] to a foreign authority outside of the mutual administrative or legal assistance channels or without authorisation commits a criminal offence within the meaning of Art. 271 SCC.”
“this is the case where bank secrecy or the contractual secrecy of fiduciaries are in question”
“The passages from the literature cited by the Appellant can also be understood to the effect that in each of them, it is presumed that the data are also present (in addition to Switzerland) in the country where the proceedings in which they are to be introduced are being conducted. For example, GRAF writes: “If the information to be disclosed in the foreign proceedings is already located abroad [...], it can be provided without limitation. In this case, companies must, according to the opinion at hand, even be able to supply the documents at their own discretion either from another country or from Switzerland if the information [...] is available in both states, as such data are no longer covered by the protective purpose of Art. 271 Criminal Code.” (GRAF, loc. Cit., p. 179). There are no indications that the term “abroad” means a state other than the one in which the proceedings are being conducted. … ROSENTHAL concerns himself, in the passage cited by the Appellant, with the link to Switzerland, or the question of whether the activity took place on Swiss territory. His view is that taking of evidence involving evidence present in Switzerland is no longer considered to take place in Switzerland if this evidence or content is also available abroad at any rate due to its intended purpose and can therefore be accessed abroad within the scope of the concrete taking of evidence (ROSENTHAL, loc. cit., N. 35 on Art. 271 Criminal Code). The matter at hand differs from this example in two ways. First, this case concerns not the taking of evidence, but rather directly turning over data to a public authority of a foreign state. Second, the data were not accessed abroad; instead, they were taken abroad from Switzerland. Consequently, the opinions from the literature cited by the Appellant cannot change anything about the foregoing assessment …”
“Any person who seeks to obtain a manufacturing or trade secret in order to make it available to an external official agency, a foreign organisation, a private enterprise, or the agents of any of these, or, any person who makes a manufacturing or trade secret available to an foreign official agency, a foreign organisation, a private enterprise, or the agents of any of these, shall be liable to a custodial sentence not exceeding three years or to a monetary penalty, or in serious cases to a custodial sentence of not less than one year. …”
“Art. 292 (Contempt official orders) Any person who fails to comply with an official order that has been issued to him by a competent authority or public official under the threat of the criminal penalty for non-compliance in terms of this Article shall be liable to a fine.” “Art. 293 (Publication of secret proceedings) 1 Any person who publishes information from the files, proceedings or official investigations of a public authority which have been declared secret by that authority by law or by a lawful order issued by the authority shall be liable to a fine. 2 Complicity is also a criminal offence.”
“A custodial sentence not exceeding three years or a monetary penalty shall be imposed on anyone who wilfully: a. discloses a secret that has been entrusted to him in his capacity as an organ, employee, agent or liquidator of a bank…or as an organ or employee of an audit company, or that he has perceived in this capacity; b. seeks to induce such a breach of professional secrecy; c. discloses a secret disclosed to him according to letter (a) to other persons or exploits it for himself or another person…”