Commentaries

Whilst we have repeatedly highlighted the lack of detail in the summaries of the Banking Supervision Commission’s (hereinafter: the Commission) ‘leading cases’, it must be acknowledged that the latest publication raises a number of interesting and rarely addressed issues. Among these, we note first and foremost a clarification regarding the scope of application of the Bank Due Diligence Convention (hereinafter: the BDC or the Convention) in relation to credit card transactions. Recalling first of all that the CDB 20 applies[...]

In a ruling RR.2023.127-133 dated January 20, 2026, the Federal Criminal Court (FCC) dismissed appeals against a decision to return seized funds to Russia but suspended the case pending a favorable development in the internal situation. Ruling without costs, it referred the case back to the Federal Department of Justice and Police (FDJP) for a decision on the application of Art. 1a EIMP, which stipulates that cooperation must be compatible, in particular, with Swiss public policy. The case concerns funds[...]

Can PostFinance refuse to open a bank account on the grounds that the relationship would entail disproportionately high costs? In a brief ruling intended for publication, the Federal Court leaves the question wide open. However, it specifies that a customer wishing to take legal action to open a bank account cannot invoke the special consumer forum provided for in Art. 32 CPC (4A_115/2025 of 12 January 2026). In 2022, a foreign politician domiciled in Geneva applied to open a bank[...]

On several occasions, the Federal Court has left open the question of the obligation to return retrocessions in an execution-only relationship (see in particular Fischer, cdbf.ch/1338). In its judgment 4A_149/2025 of January 12, 2026, intended for publication, it ruled that the compensation received by a private bank in connection with the distribution of investment funds and structured products was not subject to restitution, given the circumstances. The relationship between the parties was one of execution only; however, the disputed remuneration[...]

In November 2025, the European Commission presented the Digital Omnibus Package. Its second part (the ‘Digital Omnibus II’) proposes several targeted adjustments to Regulation (EU) 2024/1689 on artificial intelligence (IA Act) that pursue a central objective: to improve its implementation in light of the initial difficulties identified, while maintaining the architecture of the law based on the assessment of the risks presented by an AI system (AIS) or a general-purpose AI model (GPAIM). As already mentioned in a previous commentary[...]

Is an asset manager who receives retrocessions for ten years without informing his clients guilty of unfair management and can he be prohibited from practicing within the meaning of Art. 67 CP? The Federal Supreme Court answered both questions in the affirmative in its judgment 6B_431/2024 of November 10, 2025. In this case, an asset manager was accused of receiving retrocessions between 2006 and 2016 without informing his clients. The asset manager received 25% of the annual deposit fees, 60%[...]

The growing interest in cryptoassets has been accompanied in Switzerland by the rapid development of services for the custody of these assets. Against this backdrop, on 12 January 2026 FINMA published its Supervisory Notice 01/2026 on the custody of cryptoassets. It sets out the legal basis governing their custody and withdrawal in the event of the custodian's bankruptcy, while highlighting the risks associated with certain configurations, particularly when foreign sub-custodians are used. This communication addresses four topics: (i) the custody[...]

In a judgment intended for publication, the Federal Court ruled on the method applicable for separating bank assets derived from a criminal offence from legal bank assets deposited in the same account (7B_65/2023 of 5 December 2025). In 2010, the Office of the Attorney General of Switzerland (‘OAG’) opened criminal proceedings against persons unknown on suspicion of money laundering of assets derived from crimes committed in Russia (Art. 305bis(1) and (2) of the Swiss Criminal Code). In essence, the Russian[...]

In its ruling 5A_50/2025 of 12 December 2025, the Federal Court ruled that the Obergericht of the canton of Zug had acted arbitrarily in lifting an attachment based on a judgment of the High Court of Singapore (Art. 271 para. 1 no. 6 LP). The dispute concerns the indirect jurisdiction of the Singapore court, which is based on a choice of court clause (Art. 26(b) LDIP). Is the alleged debtor bound by this clause under the rules on representation? The[...]

The Federal Court confirms the applicability of the general terms and conditions to the opening of a sub-account and denies that the bank committed gross negligence in failing to detect fraudulent orders (4A_76/2025 of 21 August 2025). The client, a wealthy businessman, has had numerous business dealings with the bank since 2005. The bank's general terms and conditions contain a complaint clause, requiring the client to contest orders or instructions immediately after notification, but no later than within the specified[...]

On 25 November, Switzerland entered the era of Open Banking with the launch of the ‘bLink’ platform operated by SIX. This development places Switzerland within an international movement that aims to promote the sharing of financial data via standardised interfaces, in order to offer customers greater access to innovative services offered by a variety of financial service providers. Open Banking is defined as a standardised model for sharing financial data, which aims to facilitate the exchange of information between financial[...]

In a ruling dated 16 September 2025, the Federal Court confirmed that the publication for five years on the FINMA website of a decision prohibiting a person from carrying out an activity subject to authorisation under financial market law without the necessary authorisation is justified (2C_596/2024 of 16 September 2025) . This ruling is based on the same facts as ruling 2C_597/2024 of 16 September 2025 (commented on in: Dupuis, cdbf.ch/1440/). In summary, a company and its three main shareholders,[...]

The criminal prosecution authority may refuse to seal documents that a bank must keep available for the criminal authorities in accordance with Article 7 AMLA, even if the documents were drawn up by lawyers. This conclusion, reached by the Federal Supreme Court in a ruling dated October 2, 2025—not intended for publication but handed down by five judges—is in line with the trend in case law relating to attorney-client privilege in the context of anti-money laundering (7B_1154/2024). In 2023, the[...]

In a ruling dated September 24, 2025, the Federal Court reiterated that the offense of money laundering requires intent on the part of the perpetrator, at least in the form of eventual intent, and that a single violation of anti-money laundering rules, even a significant one, does not in itself allow such intent to be inferred (6B_1180/2023). The Office of the Attorney General of Switzerland accused a bank employee of opening bank accounts using false customer data and, between 2003[...]

A client's legal action was dismissed on the grounds that she had failed to sufficiently allege the hypothetical scenario of how transactions would have unfolded if the bank had acted in accordance with its contractual obligations. She was suing her Swiss bank to claim reimbursement for a loss resulting from the sale of options on Russian shares (4A_657/2024 of September 1, 2025). In November 2021, a Bahamian company had sold put options on American Depository Receipts (ADRs) of shares in[...]

In its judgment 5A_802/2024 of 28 August 2025 (intended for publication), the Federal Supreme Court ruled on the question of whether freezing orders issued on the basis of the Ordinance on Measures in Connection with the Situation in Ukraine (Ukraine Ordinance) take precedence over enforcement under the Federal Debt Enforcement and Bankruptcy Act (LP). In July 2024, the Zurich Debt Enforcement Office issued a decision suspending enforcement proceedings initiated under the DEBA. The proceedings concerned assets that were also frozen[...]

In a recent judgment intended for publication (judgment 2C_597/2024 of 16 September 2025), the Federal Court confirmed the liquidation of a company that had carried out the activity of an issuing house (see Art. 3 para. 2 aOBVM) (now a securities house, see Art. 44 para. 1 let. c LEFin) without authorisation. Company A, founded in 2015 by C, is active in the sale of subscriptions for recyclable goods. Shortly after the company was founded, C sold 80% of the[...]

In its ruling B-2334/2023 of October 1, 2025, the FAC issued a partial decision overturning FINMA's decision of March 19, 2023, ordering the write-down of hybrid loans recognized as additional tier 1 (AT1) capital. This is an important step in what promises to be a long legal saga. This commentary is an exception to the usual practice regarding the length of the text, given the importance and scope of the judgment. This decision will also be discussed at the 2025[...]

The principle of subsidiarity does not require a state to consult the taxpayer prior to requesting international administrative assistance in tax matters, as long as its domestic law does not require it to do so. This was the ruling of the Federal Court on the legal question of principle raised in case 2C_352/2024 (intended for publication). In 2020, the Israeli Tax Information Exchange Service requested the FTA to provide it with various information (identity of account holders, identity of beneficial[...]

The reasoning behind the Federal Court's decision, handed down following a hearing on 23 May 2025, rejecting a lawsuit brought against the Swiss Confederation in connection with the emergency merger of Credit Suisse Group AG (CS) into UBS Group AG (UBS), has finally been made public (TF, 23.5.2025, 2E_1/2024). The case concerns a couple from Aargau who purchased CS shares on the stock exchange between 10 and 15 March 2023. In the days that followed, the crisis of confidence that[...]

On September 26, 2025, the Federal Chambers adopted the latest revision of the anti-money laundering measures, which began in the summer of 2023. For the record, the government's bill had two parts. The first related to the introduction of an electronic register of beneficial owners of companies, through a new law on the transparency of legal entities and the identification of beneficial owners (LTPM). The second consisted of several amendments to the AMLA, the most controversial of which was the[...]

The MROS publishes ‘negative typologies’. The aim is to raise awareness among financial intermediaries (FIs) of the substance of the clarifications and to improve the quality of data to enable it to be processed efficiently, which is to be welcomed. It is not certain that this objective will be achieved, as some typologies leave practitioners perplexed. Here are a few thoughts from a practical perspective on some of the typologies published on 16 September 2025. Typology 2: In the absence[...]

In its ruling 2C_368/2023 of August 6, 2025, handed down by five judges but not intended for publication, the Federal Supreme Court upheld the ban on practicing imposed on the former member of the management of Banca della Svizzera Italiana SA (“BSI”) more than two years after confirming that imposed on the former Head of Legal & Compliance (decision 2C_747/2021, commented on in: Braidi, cdbf.ch/1286). The appellant, former CEO of BSI Singapore Ltd. and member of the management of BSI,[...]

On 8 September 2025, the Financial Stability Institute (FSI) published a document aimed at clarifying what is meant by ‘explainability of artificial intelligence systems’ and certain options for how to meet this requirement. This document is particularly important given that FINMA has made explainability one of the key points for banks to consider in its Communication 08/2024 of 18 December 2024 on the supervision of governance and risk management in relation to the use of artificial intelligence (see Caballero Cuevas,[...]

In its ruling ACJC/805/2025 of June 16, 2025, the Court of Justice of the Canton of Geneva ruled on an action for rectification of personal data brought in a banking context. This ruling, which to our knowledge is one of the first published court decisions on such an action in the banking sector, raises questions regarding the application of the revised Federal Act on Data Protection (FADP) in relation to the designation of a beneficial owner. The ruling, which is[...]

A bank that guarantees its client a 5% return on their investments must bear the consequences. In judgments 4A_361/2024 and 4A_363/2024 of 18 June 2025, the bank learned this the hard way and was ordered to pay more than USD 31 million. In June 2010, a bank met with two brothers from a wealthy Qatari family with a view to establishing a business relationship. After several discussions, the parties entered into a credit agreement in which the bank undertook to[...]

Unless expressly stated in the contract, a bank may not terminate a mortgage loan early if, at the time of termination, there are no outstanding payments (4A_599/2024 of May 26, 2025). In August 2021, a bank entered into a mortgage financing agreement with a company and offered a credit line of up to CHF 4,552,500. Article 7 of the agreement stipulates that the debt must be reduced by annual repayments of CHF 52,500, the first of which is due on[...]

In its ruling 4A_493/2024 of 17 June 2025, the Federal Court concluded that employers are required to provide references, in addition to employment certificates, to employees who request them. However, it refrained from setting a specific deadline for doing so, as this will depend on the specific circumstances of each case. The employee had been working for a bank in Zurich since February 2011. The bank dismissed the employee on 2 December 2014 after facing regulatory proceedings in Switzerland, the[...]

‘If money doesn't bring happiness, give it back!’ said Jules Renard. Coluche seized on the phrase with his characteristic wit, and the line struck a chord with people throughout France and Navarre. The following story, sadly familiar, brings us back to this strange paradox. The ruling it generated, TF 4A_577/2024 of 10 July 2025, confirms a carefully reasoned decision by the Zurich Handelsgericht (133 pages) concerning a lack of legitimacy. We apologise in advance to the reader for the length[...]

The European Regulation on Artificial Intelligence (AI Act) sets out a series of obligations that may apply to Swiss financial institutions even if they do not have a physical presence in the EU. This commentary uses three practical examples to illustrate how the AI Act could apply in practice and what Swiss financial institutions should be aware of, particularly when an AI system (AIS) is classified as high risk. As a reminder, the AI Act is likely to apply to[...]