Commentaries

For once, the publication of the case law of the Banking Supervisory Commission (hereinafter: the Commission) for the second half of 2024 contains a little more substance than usual. On procedural aspects, it is mainly issues related to the burden and the degree of proof required that seem to have occupied the authority. In the first case, the Commission emphasizes that it is all the more incumbent on the bank to prove that it has fulfilled its due diligence obligations[...]

When the bank makes a margin call, the client may have very little time to react and provide new funds. In its ruling 4A_389/2024 of May 8, 2025, the Federal Supreme Court reiterated its strict case law on Lombard loans, particularly with regard to clients with extensive financial knowledge and experience. In early April 2019, a client entered into a relationship with a bank. During the account opening process, the client stated that he was an investment expert, had a[...]

A CEO who discloses confidential information to a journalist must compensate his employer for the damage caused, in this case the costs incurred by the communications agency. The fact that other press articles had been published previously does not negate the existence of a causal link (4A_159/2024). A company belonging to a Portuguese banking and financial group dismissed its CEO. It drew his attention to his obligation to maintain professional secrecy. A few years later, rumours began to circulate about[...]

The European Regulation on Artificial Intelligence (AI Act) sets out specific obligations for the various actors involved in the different stages of the development, operation and use of an AI Act -covered tool. The two most important ‘roles’ in relation to these obligations are those of “provider” and ‘deployer’. It is therefore important to determine the role that each company plays in relation to artificial intelligence systems (AIS) or general-purpose AI models (GPAIM) (on the concepts of AIS and GPAIM,[...]

In three judgments 1C_435/2024, 1C_604/2024 (intended for publication) and 1C_610/2024 of 19 May 2025, the Federal Supreme Court ruled to uphold the freeze on bank assets ordered by the Federal Council in 2022 and 2023, the beneficial owners of which are persons belonging to the political entourage of former Ukrainian President Viktor Yanukovych. The assets had initially been seized following a request for international mutual assistance in criminal matters addressed to Switzerland by Ukraine (see TPF, RR.2017.118-121, RR.2017.122, 6 February[...]

The European Regulation on Artificial Intelligence (AI Act) sets out specific obligations for the various actors involved in the different stages of the development, operation and use of a tool covered by the AI Act. The two most important ‘roles’ in relation to these obligations are those of “provider” and ‘deployer’. It is therefore important to determine the role that each company plays in relation to the artificial intelligence systems (AIS) or general-purpose AI models (GPAIM) (for the concepts of[...]

The Federal Supreme Court has upheld a ruling by the Geneva Court of Appeal dismissing a liability claim against a bank for mismanagement on the grounds that the allegations were insufficient (ruling 4A_276/2024 of 31 March 2025). The client had held a bank account with the bank in question since the 1960s. In 1995, she inherited EUR 3 million and entered into a management agreement with the bank. At that time, the client's portfolio consisted solely of bonds and cash.[...]

Artificial intelligence (AI) is gradually transforming the landscape of businesses and financial institutions. To take full advantage of these technologies while managing the associated risks, it is essential to establish robust AI governance. This ensures that AI systems are aligned with the company's values, objectives and regulatory standards, while ensuring effective risk management. According to a FINMA survey, the use of AI in Swiss financial institutions rose from 53% in 2023 to 75% in 2025, with a projection of 90%[...]

Bank accounts held by a lawyer may contain information protected by professional secrecy, which must not be disclosed to a foreign state in the context of administrative assistance in tax matters. This must be assumed to be the case for client accounts opened using Form R, but it is also possible that other accounts held by the lawyer may contain protected information. These are the principles laid down by the Federal Court in a ruling 2C_116/2023 of 2 May 2025[...]

On 15 May 2025, the Federal Court published a ruling of principle (TF 5A_440/2024 of 31 March 2025) clarifying the following question: Are loans granted by related parties to a company without an explicit subordination agreement subordinated in the event of the company's bankruptcy? The Federal Supreme Court confirmed that claims arising from such loans must, in principle, be treated as ordinary third-class claims in the event of bankruptcy (Art. 219 para. 4 LP). However, only in exceptional cases characterised[...]

The discretion surrounding the publication of the 2024 Annual Report, coupled with the removal of reports prior to 2015 from the MROS website (available on the Swiss National Library website), raises questions at a time when the practical guidelines published by MROS are regularly cited in ongoing proceedings. On the other hand, the typologies are now the subject of an interesting report, which also highlights good practices by financial intermediaries (FIs). In addition to its intelligence-gathering task (processing reports), the[...]

When several clients are harmed in the same case of fraud, an important question arises in insurance: is this a single claim or several claims? In its ruling 4A_626/2024 of 21 March 2025, the Federal Court answered in the affirmative. It upheld an arbitration award that denied a bank any insurance coverage on the grounds that each claim by an aggrieved customer had to be considered a separate claim, subject in particular to a separate deductible. The ruling highlights the[...]

In its judgment ACJC/141/2025 of 28 January 2025, the Geneva Court of Justice ruled that a bank's communication of its new pricing conditions in accordance with its general terms and conditions, which provided for tacit acceptance, validly derogated from special conditions agreed with the customer on fees, in the absence of timely opposition by the latter. An appeal against this ruling has been lodged with the Federal Court. At the beginning of 2019, a client opened an account with a[...]

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[...]

Was FINMA, and subsequently the Federal Administrative Court, right to refuse dividend payments by an insurance company in connection with the approval of a liquidation plan and a modified business plan on the grounds that the company had failed to comply with its obligation to cooperate with the supervisory authority? This is the question that the Federal Supreme Court had to answer in a ruling handed down on 18 February (2C_94/2024). The case in question concerns an insurance company that[...]

In a recent judgement, the Federal Court rejected a bank's appeal against a judgement of the Vaud Cantonal Court refusing to order the seizure of real estate belonging to the debtor's ex-wife (judgement 5A_754/2024 of 18 February 2025). Although the judgement in question mainly concerns matters of enforcement, in particular in relation to the degree of likelihood that the creditor must achieve in order to obtain a sequestration, this case is a telling example of the difficulties that a creditor[...]

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 European AI Regulation (AI Act), designed in particular as legislation governing the safety of AI systems (AIS), imposes requirements that any high-risk AIS must meet before it is placed on the market or put into service in the European Union, throughout its life cycle. In the banking and financial sector, the AI Act considers credit scoring AIS to be high risk. The requirements are set out in Articles 8 to 15 AI Act and relate in particular to the[...]

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 Federal Supreme Court decision 7B_1158/2024 of 18 February 2025 (not intended for publication) does not introduce any major new developments but constitutes an additional landmark in the maze of sealing procedures, in particular in the case of parallel procedures and the transmission of information between authorities. Following a report from FINMA, the FDF opened administrative criminal proceedings in March 2021 for breach of the duty of disclosure committed within a bank. In this context, the administrative authority requested various[...]

In judgment 7B_691/2024 and 7B_796/2024 of 7 February 2025, handed down by a panel of five judges but not intended for publication, the Federal Supreme Court (‘FSC’) confirms its recent case law on the application of seals under the new law (art. 264 para. 1 let. d) cum 248(1) 1st sentence CPP, cf. in particular Villard, cdbf.ch/1368). The Office of the Attorney General of Switzerland (OAG) is conducting criminal proceedings against two defendants. In this context, the OAG is conducting[...]

In a judgement published on 31 May 2024, the Federal Court had already confirmed that the fraudulent obtaining of a ‘COVID-19’ loan constituted fraud (ATF 150 IV 169, commented in Dupuis, cdbf.ch/1353). On the other hand, its case law was fluctuating with regard to the commission of the offence of forgery in relation to the presentation of the false credit application form to the lending bank. The judgement 6B_95/2024 of 6 February 2025, intended for publication, provided the answer of[...]

In a judgement 2C_219/2022 of 30 January 2025, intended for publication, the Federal Supreme Court (FSC) rejected a request for administrative assistance in tax matters submitted by Russia. The proceedings before the FSC had been suspended since 2022. Russia had sent a request for assistance to the Federal Tax Administration (FTA) in 2018 in order to identify the economic beneficiaries of dividends paid to Cypriot companies on three bank accounts opened in Switzerland and, if necessary, to reassess the amount[...]

The credit scoring company must explain to the person concerned the procedure and principles applied in practice to establish his or her solvency profile. Furthermore, the company's business secrecy does not preclude the communication of information to the authority or the court, which must weigh up the interests involved (judgment of the CJEU of 27 February 2025 in case C-203/22). A mobile phone operator refused to allow an Austrian national (CK) to conclude a mobile phone contract, which would have[...]

On February 19, 2025, the Federal Council sent the message to Parliament concerning the project to extend the automatic international exchange of information in tax matters (AIE) to crypto-assets (the Message) by adopting a framework for the declaration of crypto-assets (CDA). In addition to the CDC, the Message proposes additions and amendments to the law (P-LEAR) and the ordinance (P-OEAR) on the automatic exchange of information. The new rules are expected to come into force on January 1, 2026, for[...]

A customer who receives notice of a fraudulent direct debit commits a fault if they do not dispute it. This fault interrupts the causal link between the bank's serious fault and the damage (4A_610/2023). A Liechtenstein foundation manages the assets of a prince. Its headquarters are at a law firm in Liechtenstein. A lawyer from this firm is a member of the foundation board with joint signature with the prince. The foundation opened an account with a bank in Geneva.[...]

Following on from the EU's General Data Protection Regulation (GDPR), the European Regulation on Intelligence artificial (AI Act) provides for a broad territorial scope, covering not only companies incorporated within the EU, but also some located in third countries such as Switzerland. Swiss financial intermediaries may therefore be affected by the AI Act, the extraterritorial dimension of which is presented in this commentary. A. Criteria for determining the territorial scope of the AI Act We will discuss here the two[...]

A borrower who uses the loaned funds for a purpose other than that specified in the contract may exceptionally be found guilty of breach of trust (Art. 138 para. 1 of the Swiss Criminal Code). For this to happen, the purpose for which the assets were lent must be clearly defined in the contract, which was not the case in ruling 6B_240/2024 of 9 January 2025. On the basis of a loan agreement , a company lends USD 300,000 to[...]

In a ruling intended for publication, the Swiss Federal Supreme Court, against the advice of the Federal Tax Administration, exempts a holding company from stamp duty (i) in the case of an intra-group transfer of shareholdings that do not meet the restructuring conditions set out in the LIFD and (ii) following the granting of shareholdings to employees free of charge (9C_168/2023, 9C_176/2023 of 25 November 2024). The case concerns a holding company carrying out two transactions which the Federal Tax[...]

In judgment PS240181 of 14 November 2024, the ZurichObergericht ruled that art. 44 of the Swiss Criminal Code applies by analogy to asset freezing measures taken under the Embargo Act and its implementing ordinances, despite the absence of any reference to the Embargo Act in art. 44 of the Swiss Criminal Code. It follows that realisation under the LP is not possible as long as the assets are frozen. On 6 June 2023, a creditor with an enforceable judgment from[...]