Article 102 in practice: what the company must prove

Read the PDF edition (2 pages)

Article 102 of the Criminal Code, in its paragraph 2, punishes the company that has failed to take all reasonable and necessary organisational measures to prevent certain offences, including the bribery of foreign public officials. The central question in every proceeding is which measures were reasonable and necessary, a question to which the three Geneva cases have progressively given a more precise answer.¹ A code of conduct is not enough: there must be a risk analysis by country and by type of counterparty, procedures for selecting and monitoring intermediaries that are proportionate to those risks, payment verification, training, a whistleblowing channel, independent controls and a documented response to warning signs. The cases showed that the convicted houses had written rules which practice ignored, and that the Office of the Attorney General judged that practice.

For Geneva traders, this evolving case law has a practical significance: it defines the minimum content of an anti-corruption compliance programme, which the following section sets out in detail, and it fixes the burden of proof. The prosecuted company must demonstrate, with supporting documents, that its measures existed, functioned and were applied at the time of the facts, failing which it is convicted even if no executive was complicit. Documentation has thus become, beyond compliance itself, the company’s legal protection.

Notes

Office of the Attorney General of Switzerland, press release of 5 August 2024: summary penalty order convicting Glencore International AG to a fine of CHF 2 million and a compensatory claim of USD 150 million for having failed to take “all reasonable and necessary organisational measures to prevent the bribery of foreign public officials” by a business partner in the acquisition of minority shareholdings in two mining companies in the DRC in 2011, after four years of investigation, with an order discontinuing proceedings on the other aspects (2007-2017); Public Eye, press release of 17 October 2019: summary penalty order against Gunvor (Art. 102 SCC, fine of CHF 4 million, compensatory claim of CHF 90 million, “serious deficiencies in its internal organisation”); Wikipedia (en), art. “Trafigura”: conviction in 2025 by the Swiss courts of the company and of its former chief operating officer Mike Wainwright for bribes of EUR 4.3 million in Angola (2009-2011). ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of September 2025.

English

Contact

Dr Alexander Ressos, TEP

Rechtsanwalt/Attorney-at-Law

I am a Swiss attorney-at-law and also admitted as a solicitor in Hong Kong and in England & Wales, with almost 25 years of experience.

Together with my multilingual team, including Chinese, Japanese, Korean, Russian, Ukrainian and French native speakers, I advise companies and their owners from around the world on the full range of banking, corporate, commercial and tax law matters in Switzerland, including international tax planning, fiduciary services, and legal family office services including immigration & relocation or real estate investments. My practice has a particular focus on clients from growth and frontier markets in Greater China, Central Asia and the Caucasus, the rest of Asia, the Middle East, Africa and Latin America, and I equally advise clients from Europe and North America. Through an affiliated Swiss trust company, we also take care of the incorporation and ongoing administration of their companies and other structures, including accounting, tax returns and corporate secretarial services, and I serve as a professional director where required. With the support of a network of first-class cooperation partners, I also implement solutions worldwide.

My approach is to act as a trusted advisor who works directly with decision-makers, on an equal footing: I start from what you want to achieve and shape every structure, contract and tax decision around your commercial goals and how it improves your after-tax return. As “lawyers who make it happen”, my team and I stay involved until your company is set up, your structure is in place and your transaction has closed, and we remain available for any follow-on work that may be required. You benefit from bespoke solutions and personal attention, and sound, friendly and practical advice. We are not the lowest-cost provider in the market, nor do we intend to be; our aim is to deliver well-founded, proper solutions and excellent value for money.

Get in touch →

Article 102 in practice: what the company must prove

Notes

Setting up or expanding in Switzerland?