D-01-22

In its press release of 21 March 2025, the Federal Council reported on the results of the consultation procedure on the partial revision of the regulations on non-financial reporting and due diligence obligations for companies, which ended in October 2024. The Federal Council reaffirms its commitment to bringing Swiss law into line with international standards. However, in view of recent legislative developments in the EU, Swiss companies will have to wait before they know what will happen to the draft[...]

There is debate about the extent to which the client's knowledge and experience should be gathered as part of the suitability test. The solution proposed by Art. 12 para. 2 FinSA is probably not satisfactory for the investment advisory service. For the management service, the interpretation of this provision proposed by FINMA in its Circular 2025/2 on the rules of conduct according to FinSA and FinSO has been fairly criticized and, according to some, deviates from the will of Parliament.[...]

The Geneva Court of Justice, in its ruling ACJC/1653/2024 of 19 December 2024, ruled that a clause waiving retrocessions indicating percentage ranges of the ‘volume invested on an annual basis’ by product category is valid within the framework of a management mandate. The Court of Justice begins its reasoning by recalling the principle that the agent must not be impoverished or enriched by the mandate apart from his agreed fees. Referring to the judgment 4A_266/2010 (commented in Fischer, cdbf.ch/773), it[...]

The members of the board of trustees of a pension fund must draw up the investment strategy and organise and supervise its implementation. If they fail to do so, in particular if they conclude a discretionary mandate without any investment strategy and without supervising the investment manager, the members will incur civil liability (9C_496/2022, 9C_503/2022, 9C_504/2022, 9C_505/2022). A pension fund for a nursing home in Fribourg decided to enter into a discretionary management contract with an asset management company. The[...]