LENLAW is pleased to share the publication of a new book chapter by Stefan Mbiyavanga and Prof. Nadja Capus.
In “La restitution de biens mal acquis: analyse de l’approche suisse”, the authors examine Switzerland’s legal framework and practice regarding the recovery and restitution of illicitly acquired assets.
Switzerland has a long and controversial history as a destination for illicit assets, including assets originating from African states. Yet this history, and its partial legal processing, also provides important lessons for today.The chapter is particularly relevant for two groups of African jurisdictions. First, for states seeking to recover assets lost through corruption, misappropriation or other illicit financial flows. Second, for African financial and logistics centres, including jurisdictions such as Mauritius, the Seychelles, South Africa, Kenya or Rwanda, which are increasingly exposed to complex financial flows.
The chapter highlights several unresolved issues in Swiss law and practice: the uncertain scope of early release under mutual legal assistance law; the lack of restitution of corporate corruption proceeds to injured states in Swiss criminal proceedings; and the potential, but also political sensitivity, of the Swiss Foreign Illicit Assets Act.
The authors conclude that effective asset recovery does not necessarily require ever more legal instruments. In the Swiss context, a more consistent and rigorous application of existing rules would likely have achieved more — including with regard to anti-money laundering obligations for advisers and other professional intermediaries.
