General Definition of Fraud Under Liechtenstein Law

Liechtenstein is a civil law jurisdiction. Although case law exists and serves as a practically relevant source of legal knowledge, playing an important role in daily legal practice, it is not capable of creating binding precedent as it does in common law jurisdictions. As a consequence, fraud claims – according to Liechtenstein legal doctrine – arise from legislation.

Liechtenstein law includes no explicit provisions with regard to civil fraud claims. Fraud as a specific legal term is only referenced in the Liechtenstein Criminal Code (Strafgesetzbuch; StGB).

Fraud, as defined in Section 146 of the Liechtenstein Criminal Code, is any conduct that induces a third party – through intentional deception about facts – to perform, acquiesce in, or omit to perform an act that damages the property of that person or another person, if the deception is committed with the intention to unlawfully enrich oneself or a third party through the conduct of the deceived person.

Fraud Claims Under Civil Law

Although, there are no specific provisions in Liechtenstein civil law dealing explicitly with fraud, fraud claims play an important role in a civil law context.

Civil fraud claims may arise from the general provisions on tort law included in Section 1295 et seq of the Liechtenstein General Civil Code (Allgemeines Bürgerliches Gesetzbuch; ABGB). This may include, on an abstract level, all unlawful conduct causing harm to another person or another person’s property and thus also fraudulent actions.

Fraud claims are primarily aimed at restoration of the previous state. Monetary compensation, on the other hand, must only be provided if it is impossible or impractical to restore the original condition.

As a consequence of the above, individuals who have suffered damage from fraudulent actions are entitled to claim damages and individuals who have entered into contracts on the basis of fraudulent actions may contest such contracts. This includes damage caused by, or contracts concluded as a consequence of, false statements made by a counterparty.

All examples of criminal fraud referenced below – ie, the making of corrupt payments, criminal conspiracy and misappropriation – may give rise to civil fraud claims if they include the unlawful dealing of damage to others and meet the further legal requirements.

Claims for Restitution of Unjustified Enrichment

Further to claims for damages, claims for restitution of unjustified enrichment pursuant to Section 877 (condictio sine causa) and Section 1431 (condictio indebiti) of the General Civil Code may serve as legal basis to reclaim fraudulently obtained funds or assets, albeit being less practically relevant and in general subsidiary to damages claims. Enrichment claims may be brought where a transfer of assets has been performed without legal justification – eg, by mistake of the transferor or on the basis of a void contract.

Claims for Unauthorised Use

If an unauthorised person obtains monetary or other advantage by using assets to which the person is not entitled in terms of property, the rightful owner may bring a claim based on unauthorised use according to Section 1041 of the General Civil Code. Such claims are subject to a special statute of limitations of 30 years.

Challenging Contracts Concluded by Means of Cunning Deception

Fraud is also recognised in other legal contexts. If a person has entered into a contract because of deliberate deception by another, the first is not bound to that contract according to Section 870 et seq of the General Civil Code. From these provisions on contracts also arises the possibility of having a contract altered by the court, or even of contesting a contract that has been concluded through fraudulent actions.

After a contract entered into by means of fraud has been successfully challenged, funds transferred on the basis of such contract may be reclaimed by bringing enrichment claims according to Section 877 of the General Civil Code.

Special Claims Against Directors

Section 218 of the Persons and Companies Act (Personen- und Gesellschaftsrecht; PGR) provides legal entities with a special claim of liability (for intentional as well as negligent conduct) against their directors or corporate bodies.

Civil Fraud Claims: Procedural Aspects

There are no special procedural provisions for the enforcement of fraud claims. The general rules of civil proceedings as stipulated in the Liechtenstein Code of Civil Procedure (Zivilprozessordnung; ZPO) apply.

Characteristics of Fraud in Criminal Law

According to its dogmatic classification, fraud is a crime leading to the victim inflicting harm on themselves and/or their property as a result of the deliberate deception of another. By their own deliberate conduct, the perpetrator deceives the victim about certain facts and thus causes a disposition of assets by which the victim harms themselves or a third party.

Fraud requires a particularly guided intention to unlawfully enrich oneself or a third party by deceiving somebody and tricking them into making self-harming dispositions of assets as a result of this deception.

Such deceiving conduct may either be performed by the making of an intentionally untrue statement or by a wilful omission to make true or complete statements, where legally required.

Examples of Fraud and Related Offences

By applying the above criteria, the making of false statements to cause someone else to harm their own financial interests or those of a third party will be qualified as a typical example of fraud. Where false or falsified documents are used to commit fraud, it will even be considered a case of severe fraud (Section 147 Criminal Code) with correspondingly more severe penalties.

Bribery and Corruptibility

Corruption payments to public officials, expert witnesses or arbitrators with regard to the performance of acts in breach of duty are punishable according to Section 307 of the Criminal Code with a prison term of up to three years.

Even payments for the performance of acts in accordance with official duties (eg, for acceleration or preferential treatment of an application) are punishable according to Section 307a of the Criminal Code.

Additionally, offering benefits to influence the performance of official duties without reference to a certain official act may be punished pursuant to Section 307b of the Criminal Code.

Besides corruption payments to officials, bribery and corruptibility are also punishable when committed in a private business context with regard to legally relevant actions in breach of duty (Section 309 of the Criminal Code).

The mirror image offences – ie, passive conduct relating to corruptibility and similar offences – are mentioned in the same chapter in Sections 304 and 306 of the Criminal Code for the public, and Section 309 for the private sector, respectively.

Conspiracy

Section 277 of the Criminal Code targets criminal conspiracies, defined as actions by two or more people aimed at the commission of particular, severe offences such as murder or blackmail kidnapping. Although a certain plan of action and a firm decision to commit the offence are necessary, no steps to realise or execute the plan are required to become liable for this offence.

Misappropriation

Furthermore, Liechtenstein includes provisions to prevent misappropriation of funds and assets in Section 153 of the Criminal Code.

These provisions are intended to ensure proper conduct of authorised disposers regarding their handling of assets of the respective beneficial owners. As a special offence, misappropriation can only be committed by a person with the legal authority and permission to dispose of and administer the assets of another. Misappropriation occurs wherever rules on the protection of financial interests of the beneficial owner are unreasonably violated.

Relevance of Misappropriation in Liechtenstein

As a consequence of its liberal private and contractual law and its favourable tax regime, Liechtenstein is home to numerous legal structures for wealth preservation and asset management, especially private and charitable benefit foundations and trusts, but also financial asset managers such as fund management companies, banks and insurance companies.

This leads to a vast number of legal entities being managed by professional trustees, board members and others with the authority to make legally valid dispositions relating to other people’s assets. Committing misappropriation in the capacity of trustee is considered an aggravating circumstance by Liechtenstein courts. Misappropriation claims are often of special relevance in the context of wealth and asset tracing proceedings in Liechtenstein.

In the case of damages that have already been dealt, a claimant may resort to the standard tort law provisions and claim damages if the following conditions are met:

• (material or immaterial) damage must already have been inflicted on the victim;
• actions of the perpetrator must have been causal for the infliction of the damage on the victim;
• actions of the perpetrator must have been committed unlawfully, in violation of legal provisions or a contract; and
• the perpetrator must be personally and subjectively culpable for their actions.

Apart from this, the receipt of a bribe may be reported to the public prosecutor’s office to be prosecuted under Section 307 et seq of the Criminal Code.

Taking Action Against Third Parties Assisting in Fraud

As a general rule, the same criteria which apply to claims against fraudsters themselves are also relevant with regard to third parties who assist in or facilitate fraudulent acts of another according to Section 1301 of the General Civil Code. The provision refers explicitly to direct or indirect assistance and hence comprises a broad range of different conduct.

By way of example, the receipt of fraudulently obtained assets of other persons will be considered a case of the above-mentioned Section 1301 in conjunction with Section 1295 of the General Civil Code in a civil context. Depending on the share and degree of culpability of each affected individual, liability will either be proportionate (pro rata) or joint and several.

From a criminal law point of view, such actions will be considered as either the receipt of stolen goods according to Section 164 of the Criminal Code or participation in the offence (eg, fraud, bribery, corruptibility and misappropriation) of another in conjunction with Section 12 of the Criminal Code.

General tort claims and thus also civil law fraud claims under Liechtenstein law are subject to a statute of limitations of three years after notice of the damage inflicted and the identity of the perpetrator, and the causal connection between those two becoming known to the injured party according to Section 1489 of the General Civil Code. In every case, however, the absolute statute of limitations for such claims is 30 years.

The statute of limitations for the prosecution of fraud in criminal law is one year, starting upon completion of the offence according to Section 146 in conjunction with Section 57, paragraph 3 of the Criminal Code.

Property Rights and Property Claims

When assessing the perspectives of proprietary claims, an examination of the actual validity of the respective fraudulent property transfer is necessary in advance. Property claims under Liechtenstein law must always relate to certain determinable assets.

The transfer of property rights, and of rights in rem in general, is composed of a valid agreement to transfer (titulus) and the effective transfer (modus) of an asset. This must be considered when analysing proprietary claims against misappropriated or otherwise fraudulently transferred assets.

Where a transfer of property has already been perfected according to Liechtenstein law, even if somehow induced by fraud, directly resorting to proprietary claims is not a promising means of acquiring redress.

Important Proprietary Claims

The exercise of property rights by a proprietor is generally unrestricted. A proprietor may use assets as they wish and is entitled to prohibit anyone else from any disposition. As a consequence, a proprietor may also demand the return of their assets from anyone’s custody or factual possession, by means of the general proprietary claim (rei vindicatio) according to Section 20, paragraph 1 of the Law on Property (Sachenrecht; SR).

Whenever a valid transfer of property has already taken place, however, the converted proceeds of assets obtained by fraud are not subject to recovery by proprietary claims against the fraudster. Taking action against a fraudster under these conditions is only possible based on claims arising from obligations law.

If a third party has acquired originally misappropriated or otherwise fraudulently obtained assets in good faith, such party will be considered the rightful proprietor. Consequently, a third party who has acquired assets in good faith is legally protected against proprietary claims of a former owner (Section 512 of the Law on Property).

On the other hand, a third party, who knew or ought to have known that it was acquiring from a person who was not entitled to legally dispose of the assets (acquisition in bad faith), does not enjoy protection of the laws. Hence, proprietary claims can be successfully asserted against such third parties.

Proprietary Claims and Insolvency Proceedings

Rights of segregation (Aussonderungsrecht)

According to Section 5, paragraph 1 of the Insolvency Act (Insolvenzordnung; IO), the insolvency estate is constituted by the debtor’s assets exclusively. As a consequence, the property of others is not part of the insolvency estate and is not subject to insolvency proceedings, even if the debtor has an asset in their factual possession.

Consequently, Liechtenstein law provides for a right to segregation (Aussonderungsrecht), which enables a proprietor to claim segregation of an asset from the insolvency estate. 

Right to a separate settlement (Absonderungsrecht)

Furthermore, pledge, property transfer for security purposes, security assignment and the right to retention are considered insolvency-proof claims as well. Such legal positions provide for a right to a separate settlement (Absonderungsrecht) of the authorised person who is entitled to claim preferential settlement of their claims from the realisation proceeds of the particular assets to which their legal position is related.

Recovery of mixed funds

A person who mixes funds stemming from fraud with other funds acquires property through commingling. As a result, proprietary claims will not be effective to reclaim property. Instead, the claimant must draw on obligatory claims such as tort claims and claims for the restitution of unjustified enrichment.

Investment gains from fraudulently obtained funds

Profits generated through the successful investment of funds, which were initially obtained by fraud, are generally considered property of the investor and hence of the fraudster or proprietor.

Notably, if the respective conditions under tort law are met, the victim may not only claim positive damages but also redress for lost profits which would otherwise have probably been realised. Furthermore, a claim based on unauthorised use may be brought in such cases.

No specific pre-action conduct regulations apply in relation to fraud claims. Please note, however, that Liechtenstein procedural law requires diligent examination of the specific burdens of proof if claimants intend to assert their claims successfully.

Acting Swiftly: Interim Injunctions

Success or failure in asset tracing and recovery proceedings depend heavily on the claimant’s acting swiftly. As a consequence, interim measures intended to prevent fraudsters from secreting assets are of utmost importance.

Interim measures, according to the Liechtenstein Enforcement Act (Exekutionsordnung; EO), may be granted prior to as well as after the commencement of regular proceedings and are available either in rem or in personam.

Interim measures may be issued as security restraining orders (for pecuniary claims; Sicherungsbote) or official orders (for non-pecuniary claims; Amtsbefehle). Such injunctions are intended to maintain a current factual state and prevent a defendant from damaging, destroying, concealing or setting aside assets by custody and administration of the assets by the court, judicial prohibition to dispose of the assets or judicial prohibition to third parties to fulfil claims of the party affected through court order.

Local court practice favours the granting of interim relief wherever the concerned counterparty is a domiciliary entity – ie, a Liechtenstein-based entity whose activity is limited to the management of funds or the holding of assets.

As personal interim measures, arrest and detention of the fraudster are possible. Since these are considered to be serious sanctions, they are only permissible where the fraudster is on the run, where their possible escape would thwart the enforcement of the applicant’s claim, and where other measures are not sufficient to ensure legal protection of an applicant/endangered party. Such personal interim measures are only eligible as ultima ratio, in cases where no other measures can succeed in safeguarding the interests of the endangered party, and may never be ordered for the safeguarding of mere pecuniary claims.

Applications for interim injunctions may, but do not necessarily have to, be attached to other pending proceedings. The burden of proof for the potential secretion or dissipation of assets lies with the applicant, whereby it is sufficient to make the alleged conduct of the counterparty plausible (Bescheinigung; Glaubhaftmachung). Past behaviour or attempts to secrete assets will also be considered adequate evidence. As interim relief measures have to be determined regarding their timeframe, it may be necessary to apply for an extension of the measure from time to time.

Interim measures are always issued and executed at the expense of the claimant. Court fees vary and may amount to up to CHF8,500 depending on the monetary valuation of the claim.

Procedural Ways to Achieve Disclosure

Civil law aspects

The Code of Civil Procedure generally leaves the collection and submission of evidence to the parties. Liechtenstein law does not provide rules for the compulsory discovery of pretrial evidence. Even during civil proceedings, the possibilities to force a counterparty to produce evidence – eg, documents related to assets – are restricted to situations in which:

• the respective evidence has already been referred to by the affected counterparty in the course of the proceedings;
• the party required to prove is legally entitled to disclosure of the document; or
• the concerned documents are common documents to the parties – ie, referring to a legal relationship between the two parties (eg, a contract between the parties to the proceedings).

Neither the appearance of a party in court nor the testimony during a party hearing can be compelled by the court. The above remarks refer only to the parties of the lawsuit and, as a general rule, are not extended to their nominees or other associates. A cross-undertaking in damages is not required.

Criminal proceedings

Contrary to civil proceedings, the tasks to collect and prepare evidence in criminal proceedings are largely assigned to the competent judge or the public prosecutor, depending on the stage of proceedings. This comprises a range of coercive measures such as the seizure of documents and coercive penalties to compel witnesses to give testimony.

If the collection of certain types of evidence is likely to be aggravated or impossible in the future, a party may apply for a court order for the preservation of evidence. This applies to the following categories of evidence:

• local inspection by the court;
• expert witness statements and testimony; and
• witness testimony.

Physical searches for documents at the defendant’s residence or place of business cannot be granted by the courts in civil proceedings. Such searches and seizures of objects and documents may only be conducted in criminal proceedings.

According to Liechtenstein legal doctrine, civil proceedings follow a two-party system (with rules on permissive and compulsory joinder of further parties). However, third parties may be summoned to testify as witnesses. In the course of such testimony, witnesses are obliged to answer the questions posed to them comprehensively and truthfully, provided they do not have a right to refuse to testify.

Third parties can be forced to produce evidence in the form of documents by issuance of a court order requiring them to do so.

Under certain conditions, witness testimony may already be obtained prior to the commencement of the proceedings. This applies whenever it must be assumed that the taking of evidence will later be made more difficult or impossible (see 2.2 Preserving Evidence).

Procedural law does not place particular restrictions on the use of such evidence. Notably, however, the rules on preserving evidence refer only to the aforementioned categories.

Ex Parte Measures

In civil proceedings, generally the taking of evidence without notification of the defendant/respondent does not intentionally occur. Two-sidedness is a guiding principle of the proceedings and the defendant must be given the opportunity to address all evidence presented to ensure procedural equality and the right to be heard. Measures ex parte or without notice are generally not foreseen. This also applies to the preserving and taking of evidence.

Even the procedures granting interim injunctions are basically two-sided and only specific circumstances justify the omission of an inter partes procedure. The reason for this strict approach towards unilateral taking of evidence is rooted in Liechtenstein law’s reception of Article 6 (fair trial) of the European Convention on Human Rights (ECHR).

There are, however, specific situations when the issuance of ex parte interim injunctions is possible. This applies whenever the conducting of an inter partes procedure would thwart the purpose of a measure, which must be determined on an individual case-by-case basis.

Joining Criminal Proceedings as Private Participants

It is not uncommon for fraud victims to seek redress via joining criminal proceedings as private participants, pursuant to Section 32 of the Code of Criminal Proceedings.

This instrument not only provides victims of fraud with the opportunity to pursue their civil claims through the criminal proceedings, but also further equips them with significant procedural rights, including the right to ask questions, submit evidence and inspect files.

In the past, the Liechtenstein Supreme Court has even held that private participants joining criminal proceedings are entitled to be heard and receive a decision on their claims within a reasonable period of time.

The Interplay of Civil and Criminal Proceedings

Civil and criminal proceedings may and actually often do run in parallel. Civil courts, for example, are not bound to the facts found in a criminal proceeding and vice versa. The progression of criminal proceedings does not necessarily impede related civil proceedings.

According to the Code of Civil Procedure, however, civil proceedings may be suspended until the conclusion of related criminal proceedings if the outcome of the latter is prejudicial for the former.

Exceptions to the Principle of Full Trial

As a general rule, Liechtenstein law requires a full trial and the possibility for the defendant to invalidate all allegations brought against them, to dispute the claimant’s arguments.

However, if the defendant does not appear at the first oral hearing although properly summoned, leaving unused the opportunity to defend themselves, civil procedural law provides for the possibility to issue a judgment by default (Versäumungsurteil) upon application of the claimant.

Additionally, the Code of Civil Procedure provides for a simplified summary proceeding to sue for pecuniary claims. If filed accordingly, the competent judge will issue a payment order on the grounds of the application which will then be delivered to the debtor for response within 14 days. If the debtor objects within 14 days, the payment order becomes invalid. If there is no reaction, however, the payment order becomes legally binding and may be used as a title to enforcement.

Pleading Civil Fraud Under General Tort Rules

Specific fraud-related claims do not exist in Liechtenstein civil law. From this follows that pleading fraud rather means pleading a specifically fraud-related behaviour responsible for damages under, for example, tort law.

This in turn requires proving:

• the damage inflicted, referring to positive damage dealt to already existing legal interests as well as the loss of future profits;
• the causal connection between the perpetrator’s behaviour and the caused damage;
• the unlawfulness of the conduct – this can either be a breach of contract or any infringement of a norm intended to protect legally acknowledged interests; and
• the personal fault of the defendant – this includes both intentional conduct and (gross as well as minor) negligence.

Notably, the calculation of damages is dependent on the type of fault (intentional conduct, negligence). Intentional or grossly negligent conduct gives rise to the obligation to compensate the other party for positive damages and loss of profits. The first includes primarily restitution, compensation for the damage actually incurred, and compensation for the expenses necessary to redress the damage. Minor negligence requires only the compensation for positive damages incurred.

As fraud always requires a deliberate deception of the victim, this implies intentional conduct and hence leads to a calculation of profits adding compensation for the loss of profits to positive damages.

Furthermore, it is of utmost importance to consider the procedural rules on the burden of proof before deciding to plead fraud in civil courts. Essentially, each party is obliged to prove the facts favourable to its own legal position. In obvious and typical cases, the courts may also accept prima facie evidence. The existence of a damage and the causality of the defendant’s behaviour for its emergence are always up to the claimant to prove.

According to the Code of Civil Procedure, the filing of a civil lawsuit requires precise designation of the defendant. Consequently, the defendant (in this case the fraudster) must be known to the claimant as a precondition to taking civil legal action.

This is a matter in which the interplay of criminal and civil law instruments may be useful. A victim of fraud may bring an offence to the attention of the public prosecutor’s office. If the office considers the information, possibly finds an initial suspicion of an offence, and opens an investigation, this may result in the discovery of the fraudster’s identity. The victim is subsequently able to join the criminal proceedings as a private participant and/or to take parallel civil legal action as soon as the identity of the fraudster has been revealed.

Contrary to parties of a legal dispute, witnesses can be compelled to appear and testify before the court. Refusal to do so will be fined or sanctioned by arrest (for imprisonment of six weeks at most) to make the witness testify.

Attribution of Knowledge to Legal Entities

Comprehensive liability of companies and foundations

Liechtenstein’s function as an important location for holding entities and domiciliary structures makes the attribution of the knowledge of individual directors to the legal entities they represent particularly and practically relevant.

In general, directors and other persons with respective power of representation are entitled to perform all legal acts on behalf of the respective entities in relation to third parties, which act in good faith (Section 187 et seq of the Persons and Companies Act).

Regarding the external liability regime, legal entities are liable to third parties for the conduct of their representatives without limitations. This applies not only to companies but also to foundations and other legal entities, which is of utmost practical relevance for legal practitioners.

Although directors and other representatives are obliged to follow internal limitations stipulated by organisational documents or resolutions of corporate bodies of the entity, such internal limitations do not generally render contradictory external conduct invalid.

Limitations of the representation of legal entities

There are, however, certain limitations to the power of representation of legal entities, which are mainly set out in Section 187a of the Persons and Companies Act. Where corporate bodies or directors take actions exceeding their statutory powers, the represented legal entity is not bound by their decisions.

Furthermore, directors’ actions exceeding the business purpose are not binding on an entity if the entity proves that the contracting partner knew or would have been obliged to know that the respective conduct was not covered by the business purpose. The Liechtenstein Supreme Court (Oberster Gerichtshof; OGH) has held that this is to be applied per analogiam also to foundations with the foundation purpose taking the place of the business purpose.

In addition to that, representatives’ actions contradicting or exceeding limitations placed by internal regulations (eg, statutes or articles of association) are not binding on a legal entity if it succeeds in proving that the contracting partner knew or would have been obliged to know about such internal limitations of the powers of representation.

Consequences of actions invalidated according to the above provisions are to be determined by application of the claim for restitution as a consequence of unjustified enrichment pursuant to Section 877 of the General Civil Code (condictio sine causa).

Inverse piercing of the veil

For situations in which a defendant is trying to set aside assets by providing them for the establishment of a legal entity – eg, a foundation – Liechtenstein case law has developed the concept of inverse piercing of the corporate veil by looking through the natural person at the legal entity and enabling a claim against this entity if the transfer of funds/assets constitutes an abuse of rights according to Section 2, paragraph 2 of the Persons and Companies Act and Section 2, paragraph 2 of the Law on Property, respectively.

Attribution of private knowledge

Private knowledge – ie, knowledge which directors or corporate bodies have acquired outside the performance of their duties on behalf of the legal entity – will also be attributed to that entity according to settled case law.

Responsibility for criminal conduct

Legal entities bear full responsibility for the criminal conduct of their directors according to Liechtenstein case law. This line of jurisprudence is also extended to the foundation board as governing body of a foundation.

Piercing of the Corporate Veil

Where legal entities have been used as vehicles to commit fraud, Liechtenstein case law recognises the concept of a piercing of the corporate veil – ie, attributing rights and obligations of a legal person to the natural person behind it, provided the use of legal entities as instruments amounts to an abuse of rights.

Primary Claims of the Legal Entity and Subsidiary Claims of Shareholders Against Directors

Section 218, paragraph 2 of the Liechtenstein Persons and Companies Act (Personen und Gesellschaftsrecht; PGR) specifically deals with the issue of shareholders’ claims against the directors of a legal entity. The large number of externally managed companies and legal structures helps illustrate the practical significance of such claims.

Shareholders’ claims of responsibility against directors are subsidiary to claims of an entity itself against its directors because the provisions on directors’ obligations are intended to protect the property of the legal entity in the first place and are meant to provide legal relief to creditors and shareholders only indirectly.

The general rule in this context is that directors are liable to the legal entity represented by them for both intentional conduct and negligence. In insolvency proceedings, the insolvency estate (Insolvenzmasse) as legal person is entitled to this claim against the directors of its legal predecessor.

Shareholders may claim compensation from directors only if two conditions are fulfilled cumulatively. Firstly, shareholders have to be injured directly by the fraudulent behaviour of directors of the legal entity without interposition of the entity itself and, secondly, the legal entity must have no claim against its own directors at all.

The provisions on the responsibility of directors vis-à-vis the legal entities represented by them do not follow the mere rules of a liability ex delicto. Rather, Section 218 et seq of the Persons and Companies Act creates a so-called internal liability regime covering both intentional conduct and negligence, based on the statutory ex contractu liability provisions.

The statute of limitations is three years after knowledge of the damage inflicted and the identity of the perpetrator, and the causal connection between these two becomes known to the injured party. However, in cases of intentional infliction of damage or the fraudulent making of untrue statements, the statute of limitations will be extended to ten years.

No Specific Framework for Joining Overseas Parties in Liechtenstein Proceedings

There is no specific legal framework for joining overseas parties in fraud claims in Liechtenstein. The location and thus the question of whether parties are domiciled overseas or in Liechtenstein is not relevant; rather the potential joining party’s relationship to the subject of the proceedings is.

Joining criminal proceedings, induced by whomever, as a private participant requires the assertion of a private law claim by a person alleging a violation of their rights by the perpetrator.

Civil proceedings are generally designed to be bipartite. Parties who have an interest in one of the parties prevailing in the lawsuit may, however, join the proceedings as an intervening party (Nebenintervention) according to Section 17 et seq of the Code of Civil Procedure. Intervening parties may submit evidence and use all procedural means of attack and defence to support their cause.

Liechtenstein courts do not generally purport to exert extraterritorial jurisdiction.

The Liechtenstein Enforcement Act recognises the enforcement of legally valid and effective decisions (Exekutionstitel) issued by Liechtenstein courts by, inter alia, the following methods for different classes of assets.

• Enforcement against immovable assets:
1. compulsory creation of a lien over a debtor’s assets;
2. forced administration of assets through an official receiver; and
3. compulsory auction.
• Enforcement against monetary claims: garnishment and transfer.
• Enforcement against tangible movable assets: garnishment, estimation and sale.

Furthermore, enforcement may also be granted with respect to the performance or omission of actions of a person.

In principle, there are no specific rules applicable to defendants in criminal fraud proceedings. Defendants are subject to the general provisions of the Code of Criminal Procedure.

Liechtenstein law recognises the privilege against self-incrimination (nemo tenetur se ipsum accusare) in criminal proceedings as an implicit fundamental right. By invoking the right not to incriminate themselves, defendants must not suffer any disadvantages that would undermine this privilege.

Inferences from the invoking of this privilege by the defendant should be drawn very cautiously. Pursuant to Liechtenstein legal doctrine, the silence of a defendant must not be interpreted to their disadvantage. At the same time, silence may be interpreted not as of little advantage to the defendant but rather of neutral advantage.

Communication between lawyers and their clients enjoys a privileged status of confidentiality under Liechtenstein law. There is no basis for obtaining such correspondence in civil proceedings and criminal procedural law also provides for comprehensive protection of the confidentiality of such communication.

Lawyers are exempt from the obligation to testify before courts according to Section 108, paragraph 1, No 2 of the Code of Criminal Procedure. As a consequence, every attempt to try to obtain correspondence between a lawyer and their client will be considered an attempt to circumvent this privilege, which amounts to an extensive interpretation of the privilege by Liechtenstein courts.

Documents related to correspondence between a lawyer and their client may only be disclosed upon agreement of the respective client.

Liechtenstein tort law, similar to other civil law jurisdictions, does not recognise the concept of punitive or exemplary damages. Damages are only granted to compensate the loss caused and are not intended to have a punitive character.

Liechtenstein Banking Secrecy According to the Banking Act

Liechtenstein law includes a provision explicitly protecting banking secrecy in Section 14 of the Banking Act (Bankengesetz, BankenG) and the Banking Ordinance (Bankenverordnung, BankV). The law also refers explicitly to investment firms, introducing investment firm secrecy.

Banking secrecy extends to all members of corporate bodies, employees and other representatives of banks and includes all information of the client disclosed on the basis of the legal relationship with the bank. The Liechtenstein Constitutional Court has even qualified this as a “material fundamental right”.

Exceptions From Banking Secrecy: Ways to Obtain Information

Although banking secrecy may be the principle, there are many different exceptions. Today, banking secrecy mainly applies to civil proceedings in a traditional sense. It does not, however, apply to criminal proceedings and agents of banks must therefore not decline the disclosure of information received from their clients before criminal courts.

Consequently, the parallel launching or incentivising of criminal proceedings – eg, in the case of fraud allegations – may introduce the possibility of obtaining information, which would be covered by banking secrecy in civil proceedings.

Trailblazing Crypto Legislation in Liechtenstein: the Token and Trusted Services Providers Act

Liechtenstein has assumed a role as a pioneer jurisdiction in the field of crypto legislation by introducing the Token and Trusted Services Providers Act (Token- und VT-Dienstleister-Gesetz) as early as 2019. The legislation governs regulatory and civil law aspects of crypto-assets and will be applicable to tokens and crypto-assets either by nature (with respect to crypto-assets issued by a Liechtenstein issuer) or by declaration/agreement (with respect to legal relationships and crypto-assets issued by a foreign issuer which are explicitly subject to the legislation).

Civil Law Aspects of Crypto-assets

Although the law refrains from the explicit use of the conventional concepts of the system of property law, the Token and Trusted Services Providers Act introduces a comprehensive regime for the transfer of the power of disposition relating to crypto-assets, which emulates traditional concepts of the transfer of rights in rem and ensures legal certainty with regard to dispositions of crypto-assets.

Freezing Orders and Interim Relief in Respect of Crypto-assets and Fraud-Related Issues

Owing to the relative novelty of the field of crypto-assets law to the Liechtenstein legal system, there is no available case law and only limited legal writing on the matter of freezing orders pertaining to crypto-assets or tokens.

However, legislative materials provide for the clear intention of the legislature to have the provisions on property law applied in a functionally adequate manner to crypto-assets. On the basis of this consideration, freezing orders as well as other interim relief measures will be available pertaining to crypto-assets with due regard to their specific legal nature (especially their intangibility).

The authors of this article are currently not aware of any particular legal issues which would arise in the context of fraud involving crypto-assets.