Lenz & Staehelin (Switzerland)

Abstract With respect to sustainable development, Intellectual Property can represent either a critical incentive or a hindrance to innovation and creativity. However, the purpose of this report is to go beyond the positions of principle and to underline the current and prospective Intellectual Property protection and uses that would create positive impact to achieve sustainability. The role of Intellectual Property in sustainable development shall therefore be global: tackling challenges in relation to biodiversity, traditional knowledge, climate change, transfer of clean technologies, agrobiotechnology and food security shall be the focus. This contribution aims at discussing the role of Intellectual Property regulations and/or other measures taken or proposed in Switzerland to encourage sustainable enterprises and innovations. We will provide an overview of the different Intellectual Property rights protected under Swiss law and their respective/current role in sustainability (Sect. 20.2) as well as of the measures and initiatives leading to cooperation, transfer of technology or knowledge offered in Switzerland (Sect. 20.3). Overall, if there is still room for improvement, Switzerland and the Swiss Intellectual Property Office have undertaken effective steps to implement and contribute to the realisation of the sustainable development goals, especially by encouraging the dissemination of innovation and knowledge.

The European Commission and a number of EU Member States have long disputed the compatibility of intra-EU BITs with EU law. As illustrated by the Micula v Romania proceedings, where an investor seeks to enforce an intra-EU BIT award, which is seen as being in conflict with EU law, this can raise questions as to the extent to which an enforcing court should take this kind of conflict into account. The present contribution systematically analyses this issue with regard to both ICSID and non-ICSID awards, differentiating between enforcement proceedings within and outside of the EU. It concludes that within the EU even the enforcement of ICSID awards cannot be entirely taken for granted where such enforcement would lead to the violation of a fundamental provision of EU law.

The level of shareholder participation in the determination of executive compensation has emerged, in recent years, as one of the most intensively debated fields in the area of modern corporate governance. A say-on-pay regime was implemented, for the first time, in the UK in 2002, but a decisive tipping point may well have been reached in July 2010 when the US Congress adopted a new set of rules under which all US listed companies are required, starting in the 2011 proxy season, to put a vote with respect to executive compensation on the agenda of their annual meetings. The recent financial crisis also prompted the enactment of a say-on-pay vote requirement in Germany. By contrast, in Switzerland, the principle of such a shareholder vote is still being debated among experts and laymen alike. In all likelihood, Swiss voters will be consulted in 2012 or 2013 on whether or not a say-on-pay regime, whose terms are rather stringent in international comparison, should be carved into the Swiss Constitution. After a review of the rules implemented or discussed in the four jurisdictions mentioned above, the authors will argue that say-on-pay votes are, by and large, a convincing concept to enhance the corporate governance of the large public firm. It is crucial however that the modalities of such a shareholder vote be tailored to the different corporate governance structures prevailing in various jurisdictions. Finally, the authors comment on, and recommend a series of improvements with respect to, the say-on-pay provisions that have been implemented or discussed in the four jurisdictions which are addressed in this contribution.

According to Article 9(4) ACart, once the ComCo has established, in a binding and legally enforceable decision, that a specific undertaking holds a dominant position in a given market, every merger transaction involving that undertaking in the market in which it holds a dominant position or in a neighbouring market is subject to notification, irrespective of any thresholds.