Publications on various subjects including national and international trusteeships issued by Schwärzler Attorneys at Law.
Occasion legislation on the backs of trustees?
In the current issue of the Liechtensteinische Juristenzeitung, Helmut Schwärzler and Martin Hermann publish on the topic of directors' and officers' liability. As a result of the tempering legislation in Liechtenstein, claims of bank clients in the amount of several hundred million are retroactively declared time-barred. In doing so, the legislator has overlooked the fact that this liability passes directly to the executive bodies and thus to the Liechtenstein trustees.
Please read the attached article
Loss of trust in the Board of Trustees - A Revision of the Liechtenstein Institute of Professional Trustees and Fiduciaries’ Rules of Conduct
Lack of transparency, excessive costs and conflicting interests – the trust sector in Liechtenstein has been subject to severe criticism in the past. In order to ensure that in future the customers of the financial market are being looked after in the best way possible, the Liechtenstein Institute of Professional Trustees and Fiduciaries has changed their Rules of Conduct. How this was done and what opportunities arise for customers, who have lost their trust in professional trustees, is demonstrated in the following article. Article written by Dr. Helmut Schwärzler, MMag. Martin Hermann and Mag. Sara Sahranavard, in Die Privatstiftung (PSR), 2/2019
Kickbacks and the resulting claims against Swiss asset managers
Regarding the assessment of kickbacks from Swiss banks it has to be distinguished between asset management agreements and investment consultancy agreements. If an asset management agreement between a client and a bank or an asset manager exists it is imperative to examine potential claims based on wrongfully withheld kickbacks. Apart from claims against asset managers, in case of an involvement of an entity administered in Liechtenstein which is entitled to kickbacks, it is also possible to assert liability claims against the bodies of the entity based on omission of enforcement of said claims. This leads to a de facto prolongation of the limitation period for wrongfully retained kickbacks, since the negligence of the bodies as of the date at which they become aware of circumstances which require certain actions – in this case the reclamation of kickbacks – makes the bodies liable to their respective entity; this liability is subject to an individual prescription period. It is essential to find a way to handle these arising issues, regarding the obligation of Swiss asset managers to surrender kickbacks as well as the potential liability exposure of bodies of legal entities domiciled in Liechtenstein, appropriately. Enclosed you may find the whole contribution of Dr. Helmut Schwärzler, Mag. Josef Bergt and MLaw Fabian Vollrath of Schwärzler Attorneys at Law Liechtenstein | Zürich | Zug, published in Liechtenstein-Journal 01/2017.
Asset Recovery 2015 Liechtenstein
Asset Recovery Liechtenstein 2015 touches many aspects of both Civil Law and Criminal Law in Liechtenstein and the recovery of assets with procedural measures. The publication gives an extensive overview on possible measures in cases of civil and criminal asset recovery being a main field of experience and practice of the author. The material civil law offers vast possibilities to reclaim and recover lost or stolen assets and also damages e.g. by claims for compensation of damages, tort claims, claims for unjust enrichment, the surrender of property and subsequent enforcement. Further it offers several effective measures to secure existing claims and prevent further disposal of assets and further losses by means of injunction and other provisional measures. Further Liechtenstein offers legal assistance in civil matters also for securing of foreign claims. The criminal law and criminal procedure law provides several rules on the freezing and seizure of assets in connection with a criminal offence as well as measures for forfeiture and confiscation proceeds of a crime in forfeiture and skim-off proceedings by the state and also to the benefit of a victim. Further Liechtenstein as a member of the European Convention on Mutual Legal Assistance in Criminal Matters and other multilateral conventions offers legal assistance to foreign countries in criminal asset recovery cases. For questions and information please contact: Dr. Matthias Niedermüller E-Mail: email@example.com (published by Dr. Matthias Niedermüller, Schwärzler Attorneys at Law in Asset Recovery 2015, in 26 jurisdictions worldwide; “Getting the Deal through”, Law Business Research Ltd., 2015)
How the organs of a company can guard against liability suits
The organs of a company are under obligation to adhere to all restrictions imposed by legislation, statutes and other requirements under company law. Decision makers in companies are frequently confronted by liability issues as a result of failure to adhere to the requirements of the far-reaching regulatory and contractual frameworks, which are not always easy to comprehend. (Article by Dr. Helmut Schwärzler, published in Wirtschaft Regional 03/2013)
Liability under Liechtenstein company law
Managing directors, administrative boards and foundation councils of Liechtenstein companies and foundations, and such foreign base companies as foundations, establishments, trusts or trust companies controlled from abroad in particular, have special duties and obligations when it comes to the conduct of business and controlling. The authors of this book, now published in a second edition, give a detailed explanation of Liechtenstein company law and the pertinent liability regulations, as well as the actual liability claim. They describe the way in which liability problems can be managed with reference to many examples from practical experience. They also explain the differences between the pertinent regulations in Germany, Switzerland and Austria. (Dr. Helmut Schwärzler and Jürgen Wagner, LL.M., Verantwortlichkeit im liechtensteinischen Gesellschaftsrecht [Liability under Liechtenstein law], 2nd edition, 2012, published by gmg-Verlag)
Freedom of opinion in the Internet
Although the Internet offers a multitude of chances and opportunities, it also harbours risks. The global exchange of information and ideas has never been easier than it is today. Online forums, blogs and visitors' books etc. offer every Internet user a means of voicing his personal opinion to an audience of millions with a single click. However, as in the real world, there are also limits in the Internet when it comes to slander or incitement. Numerous qualifications under criminal law are quickly reached as a result of the automatic publicity that occurs in the Internet and this is something that the individual Internet user is not usually aware of. Internet surveillance is one of the key phrases of recent months. Apart from many supreme court decisions, particular attention is drawn here to a recent ruling of the European Court of Justice, which is likely to call all of the decisions concerning the Internet made by the Austrian Supreme Court into question. (Dr. Dominik Schatzmann, Meinungsfreiheit im Internet [freedom of opinion in the Internet], published by Verlag Österreich)
Liability relating to unit-linked life insurance policies – what damages are covered by the insurance company?
Many customers encounter unit-linked life insurance when searching for a suitable investment vehicle for their savings. The insurance companies that offer such policies advertise various advantages associated with them, such as favourable taxation rules for payments or preferential treatment for claims arising in the event of bankruptcy. Such unit-linked life insurance policies are usually not sold by the insurance company directly, but through a network of brokers, who act on behalf of the insurance company. This leads to a situation, in which the customer only liaises with the contracted brokers and has very little contact with the insurance company itself, if any at all. In such cases, most problems occur in the event of losses determined during the assessment of the assets paid into the insurance policy, inevitably giving rise to the question of whether the policyholder is entitled to claim compensation and, if so, against whom. (Article by Dr. Matthias Niedermüller, M.B.L. HSG, published in the Liechtenstein Journal 1/2012)
Arbitration proceedings and mediation as alternatives to public jurisdiction
Courts of law as a means of resolving conflicts are usually not only time-consuming and expensive, but also give rise to emotional stress. In spite of the growing need to resolve disputes out of court, the proportion of arbitration and mediation proceedings is extremely small compared with the number of cases brought before a court of law. Although we can assume that a change will take place with respect to mediation in the context of family law issues, the proportion of industrial disputes resolved by means of mediation or arbitration is still very small. (Article by Dr. Helmut Schwärzler, published in the Liechtenstein Journal 4/2011)
Are penalties eligible for compensation under civil law?
Dismissal charges do not constitute penalties
Following the data theft that occurred at LGT Treuhand AG, many former customers are now facing proceedings under taxation law and criminal law. Many of these criminal proceedings have been dismissed without hearings or judgements, but only on payment of a dismissal charge in accordance with § 153a of the Code of Criminal Procedure (StPO). The customers are now asserting claims for these penalties, probation charges and dismissal charges against LGT Treuhand AG under civil law. The eligibility of probation and dismissal charges for compensation has been denied by Liechtenstein law courts so far, however. (Article by Dr. Matthias Niedermüller, M.B.L. HSG, published in the Liechtenstein Journal 4/2010)
International administrative cooperation in tax affairs
Even if this appeared completely impossible a few years ago, tax exchange agreements and double tax avoidance agreements have been concluded with 14 nations within just a year. The purpose of this is to be crossed off the so-called OECD black list, which requires the conclusion of a certain number of such agreements. (Article by Dr. Helmut Schwärzler and Dr. Dominik Schatzmann, published in the Liechtenstein Journal 1/2010)
Extensive application of the principle of legitimate expectations in mutual judicial assistance procedures
In spite of constantly increasing criticism of the lack of cooperation between Liechtenstein and authorities in other countries, numerous resolutions to confiscate documents or freeze assets have been adopted in mutual judicial proceedings in Liechtenstein in recent years. However, the principle of legitimate expectations to be applied in mutual judicial assistance procedures, and the principles of procedure and legal protection, frequently lead to a situation in which the basic rights of the legal and natural persons concerned may be violated over a period lasting several years. (Article by Dr. Helmut Schwärzler, published in the Liechtenstein Journal 1/2009)
2016 International Comparative Legal Guide to Trade Marks (ICLG) – Chapter on Liechtenstein Trade Mark Law by Dr. Alexander Amann.
The ICLG Trade Mark Guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of trade mark law and regulations. Below, you can find the chapter on Liechtenstein trade mark law by Dr. Alexander Amann, LL.M. (UCLA), Partner, Attorney at Law at Schwärzler Attnorneys at Law. This article appeared in the 2016 edition of The International Comparative Legal Guide to: Trade Marks published by Global Legal Group Ltd, London.
Liability under Liechtenstein company law,
2nd edition, 2012, published by gmg-Verlag