Legal advice worth millions German government could sue lawyers for false expert opinions on F-35
Two law firms insured a fixed price for the new fighter jets on behalf of the DDPS, but the USA is demanding up to CHF 1.3 million more. According to law professor Peter V. Kunz, the federal government could hold the law firms liable.
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- The USA is demanding up to CHF 1.3 billion more for the F-35 fighter jet deal, although Switzerland assumed a fixed price.
- Two legal opinions confirmed the fixed price, but now it appears that Switzerland will probably have to bear the additional costs.
- Law professor Peter V. Kunz is of the opinion that the Confederation could hold the law firms liable for the incorrect legal advice.
The Swiss Department of Defense (DDPS) is facing a financial challenge: the USA is demanding up to CHF 1.3 billion more for the purchase of the F-35 fighter jets, although a fixed price seemed to have been agreed.
Urs Loher, the head of the Federal Armaments Office Armasuisse, had commissioned two law firms to examine the price guarantee, as the "Tages-Anzeiger" found out. The Zurich law firm Homburger examined the situation under Swiss law, while an unknown law firm analyzed the American legal situation. Both reports originally confirmed a fixed price of CHF 6.035 billion. However, it now appears that the USA is insisting on higher costs - and Switzerland will probably have to accept them.
Legal consequences and liability issues
Law professor Peter V. Kunz from the University of Bern explains in the "Tages-Anzeiger" that the expert opinions are contracts under private law. Law firms could be held liable if they make legal errors of judgment. However, there are often clauses that exclude liability. Kunz criticizes the fact that some law firms circumvent the term "legal opinion" in order to avoid liability. For example, the law firm Homburger refers to its expert opinion as a "plausibility check".
The Federal Administration is skeptical that liability could be enforced. It is often difficult to hold law firms accountable for their assessments, as different expert opinions can come to different conclusions. A judge could ultimately decide, but the treaty with the USA rules out judicial clarification.
Why expensive expert opinions if they are wrong?
Kunz sees two main reasons why the federal government commissions external reports: Either there is a lack of internal expertise, or the aim is to gain public trust. External reports are considered to be more independent, although they are sometimes adapted to the wishes of the client. The professor of commercial law at the University of Bern told the Tages-Anzeiger newspaper that he had experienced this himself as an expert for the federal government.
In the case of the F-35 deal, it seems to have been more about realistically assessing the situation than sending a message to the population - the federal government has still not published the reports.
Homburger has not commented on the allegations, and the DDPS continues to keep the reports under lock and key while negotiations with the USA continue.
