Commentaries

On 21 April 2021, the European Commission unveiled its draft regulation on artificial intelligence (P-RIA) aimed at establishing harmonised rules for artificial intelligence (AI) applicable in all European Union Member States. With the P-RIA, the Commission wants to establish a regulatory framework that allows AI to be used in accordance with European values, while encouraging innovation. The P-RIA adopts a risk-based approach and establishes an ex ante and ex post oversight regime. AI providers and other actors designated by the[...]

In a ruling 4A_223/2020 handed down on 30 October 2020 concerning a bank guarantee, the Federal Court had the opportunity to consider the consequences of an imprecise designation of the principal in the beneficiary's request for payment, and the consequences of the fact that the guarantee designated as a party to the underlying contract not the principal but a sister company of the principal. An independent guarantee had been issued by a bank based in Austria on the instructions of[...]

In a judgment handed down on 16 October 2020 (RR.2019.349+RR.2019.350+RR.2019.351), the Federal Criminal Court (FCC) analysed the conditions under which a bank believing it has rights to some USD 37 million deposited in accounts opened in its books, can oppose their surrender to a foreign state. In criminal proceedings conducted in particular on charges of stock market offences, the United States, through the Department of Justice, sent several requests for international mutual assistance in criminal matters to Switzerland, including one[...]

Under what conditions does a complaint clause take effect? In a ruling dated 1 December 2020, the Geneva Court of Justice examined this issue in a case in which a client had delayed contesting transactions allegedly carried out without her instructions (ACJC 1747/2020, now final). The client, who studied finance and worked at a bank in England, opened an account in Geneva. She did not grant the bank any mandate for asset management or investment advice. She signed the contractual[...]

Last Friday, the Federal Assembly adopted the revision of the Anti-Money Laundering Act (AMLA), which was initiated following the 4th mutual evaluation report on Switzerland by the FATF. The debates were lively, but in the end, the mountain gave birth to a mouse. The most significant amendments were rejected, in particular the subjection to the AMLA of ‘advisors’, i.e. those who carry out professional activities related to the creation and management of domiciliary companies, and the lowering of the cash[...]

Does the right not to contribute to one's own incrimination allow a person to refuse to cooperate with a European financial market supervisory authority? In a judgment of 2 February 2021 (C‑481/19), the Court of Justice of the European Union (CJEU) examined this issue in connection with Regulation No 596/2014 on market abuse. The Commissione Nazionale per le Società e la Borsa (Consob), the Italian stock exchange supervisory authority, imposed a fine of EUR 50,000 on a natural person. The[...]

In a judgment published on 11 January 2021, the Federal Supreme Court (FSC) upheld the conviction of the head of the compliance unit for French-speaking Switzerland at a bank for negligent breach of the obligation to report suspected money laundering (Art. 37 para. 2 AMLA) between 16 May and 6 June 2011 (6B_786/2020). Initially convicted by a criminal ruling of the Federal Department of Finance (FDF), this person, whom we will call Arthur, was then acquitted by the Criminal Division[...]

How can you assess the chances of success of a lawsuit against an asset management company? A recent Geneva court ruling opens the door to a judicial assessment through the procedure of evidence for the future (Civil Chamber of the Court of Justice, 14 December 2020, ACJC/1791/2020). Let us begin with a brief legal overview before turning to the facts of this ruling. Under Art. 158 CPC, the procedure for obtaining evidence in anticipation of future legal proceedings allows the[...]

The Brexit, which took effect on 31 January 2021, is now having a direct impact on UK-Swiss relations in the financial sector. In addition to ongoing discussions on mutual recognition, which remain at a high level for the time being, the UK has recognised the equivalence of Swiss regulations on trading venues for the purposes of Art. 23 MiFIR (see The Markets in Financial Instruments (Switzerland Equivalence) Regulations 2021 adopted on 12 January 2021, presented to parliament on 13 January[...]

In a ruling dated 14 January 2021 (4A_556/2019), the Federal Supreme Court examined the question of whether the ratification of a portfolio valuation by the client constitutes a tacit change to the investment profile. In November 2010, a Panamanian company gave a management mandate to a Swiss bank. They agreed that the management would be carried out conservatively in accordance with the pre-printed ‘Investment instructions for management mandates’. However, following a decline in performance, the beneficial owner (ADE) of the[...]

On 1 December, the SBA notified its member banks of the revised Guidelines on Asset Management Mandates (previously: Depierre, cdbf.ch/900/). Two important points should be noted. The first is the entry into force on 1 January 2020 of the Financial Services Act (LSFin) and its implementing ordinance (OSFin), which are partly based on MiFID II. The second is that the ASB has given the guidelines the status of voluntary self-regulation, meaning that they are not binding in the same way[...]