Case-law

On 4 November 2021, the Takeover Committee issued Decision 795/01 in which an exemption from the mandatory offer was granted to the group of shareholders made up of the Hoffmann family (hereinafter: the applicants) in the context of a planned buyback of own shares relating to a block of Roche shares held by Novartis. In order to reduce its shareholding, Novartis entered into discussions with the Roche board of directors to buy back and cancel 53.3 million Roche shares. As[...]

The direct transfer of client data across the Atlantic by an asset manager in the context of the tax dispute between Switzerland and the United States constitutes an act performed without right for a foreign state, punishable within the meaning of Article 271(1) of the Swiss Criminal Code. The Federal Supreme Court ruled as such in a judgement of 1st November 2021 intended for publication (6B_216/2020). This is the second time that the judges of Mon Repos have considered this[...]

In a recent judgement concerning the interpretation of an insurance contract, the Federal Court was required to determine the extent of the insured risk in light of the concepts of ‘primary limitation’ and ‘secondary limitation of risk’ (TF 4A_72/2021 of 28 September 2021). A Swiss holding company provides financial services through its subsidiaries, including a US subsidiary. In order to protect itself against the civil liability risks associated with its commercial activity, the holding company has taken out civil liability[...]

In a judgment 1B_59/2021 of 18 October 2021 intended for publication, the Federal Supreme Court rules for the first time on the procedure to be followed by the criminal authorities when realising seized cryptoassets in advance. Criminal proceedings have been brought in the canton of Zurich against Alexis for money laundering (art. 305bis CP). In September 2019, the public prosecutor's office seized the defendant's cryptoassets deposited with B. SA with a view to their confiscation. A year later, the prosecution[...]

Is a customer who trades online a consumer? Is a bank that cannot immediately execute a stop-loss order when the market is illiquid liable for the losses incurred by the customer? In the 4A_54/2021 ruling, the Federal Court considered these two questions, but only ruled on one of them. In 2014, a client with some experience in the financial field used the IT platform of a bank in the canton of Vaud to speculate on the variation in the EUR/CHF[...]

In a ruling dated 19 August 2021 (2C_530/2020), the Federal Court reiterated the principles applicable to the calculation of confiscable gains within the meaning of Art. 35 LFINMA. A public limited company X authorised by FINMA as a manager of collective investments within the meaning of the LPCC (authorisation now known as manager of collective assets since the relevant provisions were transferred from the LPCC to the LEFin) had entered into business finder contracts with a public limited company Y[...]

In judgment 6B 379/2020 intended for publication, the Federal Court details the conditions under which the intermediary's fees in the context of a corruption scheme may be subject to confiscation measures (articles 70 and 71 PC). The Brazilian and Swiss criminal authorities were each conducting proceedings against Alexis, a middleman in the context of the award by Petrobras of operating contracts to B. Inc. and C. BV. with a total estimated value of USD 2,680,000,000. Following solicitations from the directors[...]

In a decision of 24 November 2020 (ACJC/1653/2020), the Court of Justice of Geneva ruled on the validity of a request for payment made under a bank guarantee. The peculiarity of the ruling lies in the fact that the request did not come from the beneficiary itself but from a third-party assignee, which had then merged with the principal. The Court of Justice concluded in essence that, in addition to being formally non-compliant, the appeal to the disputed guarantee was[...]

Does an employee who uses a company credit card for private purposes commit a breach of trust to the detriment of his or her employer? The Federal Supreme Court answered this question in the affirmative in its ruling 6B_701/2020 of 11 June 2021. A bank grants an executive secretary a credit card in her name and for her exclusive use to enable her to pay her business expenses independently. Each month, the employee receives a statement which she must check[...]

In its judgement 4A_223/2021 of 26 August 2021, the Federal Supreme Court ruled on an action for the protection of clear cases concerning the surrender of 299 ounces of physical gold. This dispute has already given rise to a ruling by the Federal Court, which referred the case back to the Obergericht of the canton of Aargau for a new judgement on the application of the clausula rebus sic stantibus (4A_263/2019 of 2 December 2019, commented on in cdbf.ch/1109/). By[...]

Following on from an initial ruling in which it had ruled that an access request whose objective was to obtain information to be used in a lawsuit against the recipient of the request was abusive (4A_277/2020 of 18 November 2020), the Federal Court is continuing its case law aimed at limiting the scope of the right of access under the Data Protection Act (ATF 147 III 139). Although delivered in a very specific context, this ruling nevertheless offers interesting lessons,[...]

Ten years after the entry into force of the Uniform Rules for Demand Guarantees (URDG, ICC publication no. 758), the International Chamber of Commerce published in 2021 the International Standard Demand Guarantee Practice for URDG 758 (ISDGP, ICC publication no. 814), adopted by the ICC Banking Commission in March 2021. The collection consists of a set of practices (‘best practices’), inspired by international customs and intended to complement URDG 758. The text is published exclusively in English. Like the URDG,[...]

How can you prove your loss when a bank does not execute the order to buy shares? ATF 147 III 463 (Federal Court decision 4A_606/2020, intended for publication) provides some welcome clarification. A client asked his bank to purchase 25,000 Twitter shares at a price of USD 25 when the company went public on 7 November 2013. The bank confirmed the purchase of these shares on 6 November. However, on 11 November, the bank informed the client that it had[...]

When a bank informs its client that it will liquidate his securities if he does not react within the allotted time, can the client complain after the fact about the liquidation of his securities? The Federal Court addressed this issue in its ruling 4A_354/2020 of 5 July 2021. A Mexican national has had a bank account in Geneva since 2006. In 2010, the bank amended its general terms and conditions so that it could terminate the contractual relationship at any[...]

Background The case concerns five investors who subscribed to (unlisted) shares in a public limited company when it was founded or during subsequent capital increases. They consider that they were misled by inaccurate information contained in the issue prospectus on which they based their investment decision. They brought a civil action before the Commercial Court against various persons and entities who had participated in the drafting or dissemination of the disputed prospectus, claiming damages from them jointly and severally, in[...]

In a ruling 6B_103/2021 of 26 April 2021, the Federal Court once again considers the status of the complainant as the holding of a group of companies, one of whose subsidiaries has been the victim of acts of disloyal management (art. 158 CP). The facts are relatively complex, but can be summarised as follows. Company A SA is the Geneva-based holding of company group A, which is active in the pharmaceutical sector. C and E are shareholders and directors of[...]

On 12 May 2021, the Court of Justice of the European Union (CJEU) issued a ruling in which it restricted the competent courts under Art. 7(2) of the Brussels I bis Regulation (BI bis) for investor actions. According to the CJEU, only the courts of the state in which a listed company must fulfil its legal reporting obligations can be seized for these disputes (C-709/19). In this case, the Vereniging van Effectenbezitters (VEB), a Dutch association of shareholders, had taken[...]

In its ruling 4A_599/2019, the Federal Court considered a request for the submission of accounts by a client against his bank following a dispute over a margin call. In November 2010, the client opened an account with a Swiss bank in order to invest his assets through foreign exchange transactions and by buying and selling options on currencies and precious metals. He received a loan from the bank and signed a general pledge agreement. After the SNB abandoned the minimum[...]

The CDB Supervisory Commission recently published its traditional overview of its decisions for the second half of 2020. After a restricted financial year due to Covid-19 at the beginning of the year, supervisory activities resumed their normal course in the summer of 2020. While no notable reversal of case law has been reported, a few cases are worth mentioning. Firstly, with regard to procedure, Art. 60 para. 1 CDB (investigation procedure) does not make the opening of an investigation for[...]

Who, the bank or the customers, should bear the damage caused by the execution of orders from hackers? Shortly after the ATF 146 III 326 (cf. cdbf.ch/1150/), in which the Federal Court denied a trading company's gross negligence, the Ticino Court of Appeal was confronted with the same issue. Contrary to the decision of the Federal Court, it finds that the bank committed a serious offence, emphasising the danger of email communications (Judgment 12.2019.148 of 18 September 2020). Two brothers,[...]