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A-21-01 FinSA

Financial Services Act

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Waiver valid for product category ranges

In its judgments 4A_574/2023 and 4A_576/2023 of 24 May 2024, the Swiss Federal Supreme Court has upheld a ruling by the Zurich Handelsgericht (HG210069-O) specifying the conditions under which a waiver of retrocessions is valid outside asset management. The Handelsgericht had left open the question of whether the relationship between the parties was one of investment advice or a simple account/custody account, since in both cases the bank had to return the retrocessions. In its ruling, the Federal Court did[...]

Rules of conduct under FinSA

FINMA launches consultation on new circular

FINMA has published a draft of a new circular entitled "Rules of Conduct under the Investment Services Financing Act and the Investment Services Financing Ordinance". The aim of the draft is to enhance legal certainty two years after the end of the transitional period following the entry into force of these standards and the first prudential audit cycle on this subject. Overall, it is a relatively modest project. Rather than extending the scope or providing a general commentary, it is[...]

Supervisory Board CDB

Case law for the second half of 2023

A few days ago, members of the Swiss Bankers Association (SBA) were given an overview of the CDB Supervisory Commission's (hereinafter referred to as the Commission) "leading cases" for the period from 1 July to 31 December 2023. Despite the relatively limited content, a few points are worth noting. On procedural issues, the only decision mentioned by the Commission recalls that, pursuant to article 13 of its rules of procedure, it decides in principle on the basis of the file[...]

Margin calls

What duties does the bank have in an execution only relationship ?

The Geneva Court of Justice dismisses a client's case concerning a margin call. The Court qualified the contract as execution only, exonerating the bank from monitoring the positions and warning the customer. Without a stop loss, the bank was not obliged to liquidate the positions automatically (ACJC/378/2024 of 16 March 2024). A client entered into a business relationship with a Geneva bank in 2016. They signed an investment advice agreement in March 2018. In autumn 2018, the client undertook future[...]

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