Individual liabilities (management, front, compliance): FINMA practice and Criminal Courts decisions

Discover with a case study and practical examples brought to you by experts

Swiss courts recent decisions: how personal criminal liability is assigned between operational
units, independent control units (compliance, risks, HR), management, board of directors
FINMA: frequent violations of duties, measures against the institution and against the persons

Criminal liability of legal entities and/or physical persons

• When and under what circumstances can criminal liability be attributed to individuals vs. the legal entity
• Case study regarding criminal risks concerning front employees, compliance officers, management and board members
• Case law overview

The assignment of individual liability between board, management and front: lessons of the decisions made by FINMA

• Applicable rules
• Measures that FINMA can take
• Behaviours and rules that are monitored
• Main obligations vis-à-vis FINMA: complying with laws and prudential regulations, adequate organisation (risk management, compliance, governance), duty to report
• Illustrations:
• Duty to report
• Organisational failures: conflict of interest, lack of adequate organisation
• Governance
• Frequent violations: AMLA, conduct rules on the market, internal directives, behaviour against clients interest, criminal offenses
• Corrective measures
• Measures against the institution
• Measures against the persons: enforcement procedure, confiscation of gains, prohibition to work, …
• How to avoid the measures
• Attributions of responsibilities: board, management,
  front, former employees

Compliance and criminal law: who is risking what inside the bank?

• The main applicable offenses
• Recent practice relative to the liability inside the bank of:
• the first line of defense : operational units generating income (RM, portfolio manager, financial adviser…)
• the second line of defense, the independent control units (compliance, risks, HR)
• the third line of defense, internal audit
• management and board of directors
• The compliance officer: a scapegoat?