Laws Entered into Force

Constitutional Court: A bank may refuse to release gold to a customer subject to OFAC sanctions on grounds of supervisory risk management.

In its judgment of 31 March 2026 (StGH 2025/134), the Liechtenstein Constitutional Court held that the requirement of exhaustion of remedies applies to each individual fundamental rights complaint. This jurisprudence extends also to individual components of the reasoning underlying such complaints.

Furthermore, state interference in civil judgments generally occurs only indirectly, insofar as state courts have adjudicated the dispute. Such civil judgments, however, in the absence of so‑called third‑party effect of fundamental rights, may only be reviewed for arbitrariness, not for substantive correctness.

In relations between private parties, the substantive scope of the property guarantee is however not affected, as there is no state interference with fundamental rights.

Within the applicable arbitrariness framework, the Constitutional Court found it acceptable that the Supreme Court classified the Financial Market Authority’s (FMA) risk assessment primarily as a factual determination, which the bank could not challenge and which thereby created, in effect, accomplished facts. The Supreme Court rightly reasoned, in line with the lower courts, that the bank was under a supervisory obligation to comply with OFAC sanctions – notwithstanding their purely U.S.‑law character – by virtue of banks’ duties of risk management and sound corporate governance.

Every banking relationship is subject to the overriding requirement of the bank to comply with supervisory requirements.

If a customer considers himself harmed because the bank was compelled to follow allegedly unlawful instructions of the supervisory authority, his sole – though not insignificant – remedy lies in an official liability action.