Helping betrayed UBS clients beyond the call of duty

Dear Len,

It was good to talk to you about my evolving plans regarding the aftermath of UBS' dismaying betrayal of some of its fundamental fiduciary duties vis-à-vis some of its US customers (among many, see: «Trahis dans notre propre pays» of Oct 28, 09 & "Accord UBS: un scandale en voie d’enterrement" of Aug 18, 10 by François Pilet in Le Temps).

You, others and I know that there is a patched-up history to all that. To be sure, its roots are much deeper and go back even further than the UBS/Robert Kennedy IG Farben/GAF/Interhandel deal. But we may usefully concentrate on the post-Y2K, i.e. the on-going QI adventure. (for many, see: "Long arm of the I.R.S. rankles many", NYT, Oct.9, 09 and "Call to Stop the QI Wildcat Train in its Tracks", Oct.19, 09). Remember, as global secretariat of the Y2K damage-prevention effort, the UBS served notably its US partners in the banking and the intelligence communities. The world-wide banking inroads UBS thus developed was instrumental for creating the IRS' global network of some 7000 QI banks. As such, from fiduciaries and servants of their clients, they were turned willy-nilly into IRS agents acting under US law. Foreseeably, but no less preposterously, this evolved into the world's biggest, yet camouflaged money-launderung machine. Once effectively exposed vis-à-vis uncorruptible, principled and visionary members among the constitutional lawmakers here and there, the IRS' global juggernauts, its reckless and hugely damaging marauding on forbidden territories may then - and only then - be halted effectively. That, in turn, may afford numerous victims among the UBS clients in the US and abroad a fair chance of getting off the IRS' QI-facilitated long-arm hook, eventually even getting real, full and lasting relief, including repayment of their thus illegally confiscated funds. In a nutshell, that's the objective.

Even if our resounding prompt success in the similarly difficult Polanski affair will not be repeated as quickly, and even if we will eventually fall short of our aims, both the betrayed UBS clients and the Swiss financial market as a whole are seen to benefit significantly from our efforts. Clearly, foreign investors are thus likely to see a reason to have again confidence in our institutions. Because ours are designed to be truly helpful actions which we continue to render beyond the call of duty. Like a person faced with a pistol put to its head, we are thus more likely seen as having yielded under duress, as having sensibly avoided being crushed by the success-through-blackmail-drunken IRS', Treasury and Justice Department's steamrollers.

Here then is how I plan to go about it. Drawing inspiration from my previous successful fights against powerful US adversaries - notably in the NPT and the Marc Rich affaires summerised in my 2006 memo "Hardball or Softball? Diamantball!" - I expect our representatives to be directed by our Federal Council to unambiguously draw the line in the sand, to stand the ground like in the Marc Rich and Polanski cases and, exemplarily, to drive a hard bargain. Specifically, I plan to see to it that the delivery of UBS client data based on the CH/US treaty of 2009 be suspended until the European Court of Human Rights will have ruled on related complaints. And I expect our representatives to tell their American counterparts to stop forthwith all undue pressures, coercive measures and intolerable transgressions into our sovereign domains, unless they are prepared to risk being blackeyed by the Strassburg Court as having blackmailed, ie. "forced the sovereign will" of Switzerland into a one-sided deal, a so-called leonis treaty (contractus leonis) which, according to US-binding international customary law, is invalid ex tunc.

The first question to examine is whether the underlaying assumption is essentially correct, ie. whether - in apparent contrast to its predecessor - the current and, as far as foreseeable, the next US administration cares sufficiently about its standing in the world, recognises the opinion of the Strassburg judges as having a bearing on their global reputation, and thus would be prepared to negociate corresponding concessions in return for an eventual withdrawal of our complaints before the judgement will be handed down - some three years after registration of the complaint in the next some 60 days.

The second question to be addressed concerns the language in which the complaint is to be filed. This is seen to have a bearing on the nationality of the Strassburg judges eventually charged with the case. As such, this is seen to offer an opportunity to influence the composition of those eventually sitting on the case. For judges originating in "Old Europe" are, as a rule of thumb, understood to be less americophile than nationals from "liberated-by-America" "New Europe" countries. Among the latter nationals, according to their published cvs, only five - from Romania, Serbia, Slovenia, Turkey and Ukraine - have studied in French-speaking countries, with the other East Europeans thus assumed to work in either English and/or German and to have little or no mastery of the French language. Which would tend to favor a French language choice for said brief.

The third question relates to the complaining party and its lawyer. As of now, only one Federal Administrative Court "pilot decision" of July 15, 2010 (A 4013/2010) has been published in German, with both the party and its representative - unhelpfully - kept anonymous. Other decisions which should satisfy all relevant criteria for being drawn to Strassburg are expected to become available in the coming weeks.

Except for the rank questions - does the CH/US treaty of 2009 take precedence over the European Convention on Human Rights ECHR in Swiss and in Strassburg Court practice? - which are currently under review, and except for the treaty invalidity question, which is planned to form a core issue (covered by art.6 ECHR) of the complaint, essentially all other relevant issues have already been treated and, as such, avail themselves for prompt adaption (Yves Bonnard et Guillaume Grisel, "L'Accord UBS: spécificités, validité, conformité aux droits de l'homme", RDAF, septembre 2010; see also from the same authors: "Comment l’accord UBS viole plusieurs principes des droits de l’homme", Le Temps, 9 août 2010). The legal team, which will be charged to integrate all related separate studies and contributions, will be appointed upon the approval of the above-outlined over-all concept by the interested parties and upon the securisation of the necessary political and financial backup. This is expected within the next ten days. Total related outlays in the first twelve months are estimated at SFR. 500000, of which I have a tentative pledge from our mutual Geneva friend for SFR. 300000.

I understand your initial reaction to my oral outline and the above first question to have been positive and encouraging. I'd appreciate to study your thoughts you may have developed in between and any other comment you may care to express. Cordially yours,

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