Commentaries

On 26 July 2024, FINMA published Supervisory Notice 06/2024 on stablecoins. The communication covers the legal categorisation of stablecoins, the application of the anti-money laundering provisions, FINMA's practice with regard to default risk guarantees and the associated risks. This communication, which does not really contain anything new, is nevertheless a useful compendium of the Authority's practice developed since the publication of the Supplement to the Practical Guide for reporting issues relating to initial coin offerings (ICOs) on 11 September 2019.[...]

In a recent ruling on enforcement, the Federal Supreme Court ruled on the question of whether a personal guarantee for an unlimited amount, subject to foreign law, is compatible with Swiss public policy (ruling 4A_650/2023 of 13 May 2024). On 8 December 2010, A, domiciled in the United Arab Emirates, signed a personal guarantee contract in favour of an Emirati bank by which he guaranteed a loan granted by the bank to a company. The contract - subject to UAE[...]

After more than three years of legislative gestation, the European regulation on artificial intelligence has finally been published in the Official Journal. It is directly applicable to all EU Member States, without the need for transposition into national law. There are transitional arrangements for certain players and requirements (cf. timeline). The Regulation represents the first regulatory framework to apply generally to artificial intelligence systems (AIS), as defined below. This regulation marks a major turning point, also for Swiss financial services[...]

In its judgments 4A_574/2023 and 4A_576/2023 of 24 May 2024, the Swiss Federal Supreme Court has upheld a ruling by the Zurich Handelsgericht (HG210069-O) specifying the conditions under which a waiver of retrocessions is valid outside asset management. The Handelsgericht had left open the question of whether the relationship between the parties was one of investment advice or a simple account/custody account, since in both cases the bank had to return the retrocessions. In its ruling, the Federal Court did[...]

The Geneva Court of Justice recently handed down a ruling on international mutual assistance in civil matters (ACJC/483/2024), in which it refused to consider a letter rogatory as abusive and/or likely to undermine Swiss sovereignty or security (art. 12 al. 1 let. b CLaH70). Alice and Bernard are nationals of State F and have refugee status in Switzerland due to judicial and extra-judicial persecution by the authorities of F. In 2012, F requested mutual assistance in criminal matters from Switzerland[...]

The RGPD also protects the banking data of legal entities when the beneficial owner objects to the transfer of the data to the Department of Justice (judgment no. 141/23-II-CIV of 6 December 2023 of the Luxembourg Superior Court of Justice). A person holds bank accounts with the Luxembourg branch of a Swiss bank. He is also the beneficial owner of a company which has two bank accounts with this branch. Another company, of which the customer's ex-wife and son are[...]

There is nothing new about the fact that an asset manager who engages in churning is liable to a criminal conviction (disloyal management - art. 158 of the Swiss Criminal Code). In its ruling 6B_1118/2023 of 26 April 2024, the Swiss Federal Supreme Court analysed in detail the evidence that would allow a churning activity to be identified or ruled out, i.e. carrying out a large number of transactions with the sole aim of increasing retrocessions. Between 2003 and 2005,[...]

On 22 May 2024, the Federal Council published the bill revising the anti-money laundering provisions. The revision comprises two parts. The first follows on from the amendment of FATF Recommendation 24 on the transparency of legal persons in early 2022. It provides for the introduction of a federal register of beneficial owners of companies, by means of a new law on the transparency of legal persons and the identification of beneficial owners (P-LTPM). The second part consists of several amendments[...]

Since March 2020, more than 100,000 Swiss companies have made use of the bonded loans set up by the Confederation to make up for a lack of liquidity following the COVID-19 pandemic. The Swiss authorities' desire to respond quickly to an exceptional situation and to ensure rapid access to funds led them to introduce a facilitated procedure, based essentially on a self-declaration by the credit applicant, which has unfortunately seen its share of abuses. In a recent ruling to be[...]

The MROS Annual Report 2023 has been published discreetly. Only certain points are commented on. The statistics include 11,876 communications corresponding to 21,500 business relationships (+56%, a tenfold increase in 10 years), 90.5% of which came from banks, while asset managers, lawyers, notaries and trustees remain largely under-represented. Fraud remains the leading predicate offence (see this analysis). 14.5% of reports concerned crypto-currencies, the importance of which is probably underestimated (see this specific report, commented on in Tharin, cdbf.ch/1335/). No surge[...]

From 1 January 2025, banks, insurance companies and financial market infrastructures will have to report cyber attacks to the Federal Office for Cyber Security (FOCS) within 24 hours. The Federal Council has just put out to consultation the draft ordinance that implements art. 74a ff of the Federal Act on Information Security (obligation to report cyber attacks). As we explained earlier (see Hirsch, cdbf.ch/1261), banks will now have to inform the OFCS in the event of a cyber attack. The[...]

FINMA has published a draft of a new circular entitled "Rules of Conduct under the Investment Services Financing Act and the Investment Services Financing Ordinance". The aim of the draft is to enhance legal certainty two years after the end of the transitional period following the entry into force of these standards and the first prudential audit cycle on this subject. Overall, it is a relatively modest project. Rather than extending the scope or providing a general commentary, it is[...]

A few days ago, members of the Swiss Bankers Association (SBA) were given an overview of the CDB Supervisory Commission's (hereinafter referred to as the Commission) "leading cases" for the period from 1 July to 31 December 2023. Despite the relatively limited content, a few points are worth noting. On procedural issues, the only decision mentioned by the Commission recalls that, pursuant to article 13 of its rules of procedure, it decides in principle on the basis of the file[...]

The Geneva Court of Justice dismisses a client's case concerning a margin call. The Court qualified the contract as execution only, exonerating the bank from monitoring the positions and warning the customer. Without a stop loss, the bank was not obliged to liquidate the positions automatically (ACJC/378/2024 of 16 March 2024). A client entered into a business relationship with a Geneva bank in 2016. They signed an investment advice agreement in March 2018. In autumn 2018, the client undertook future[...]

In its report of 10 April 2024 on bank stability, the Federal Council proposes the development of a senior managers' regime (SMR) as part of the "Too Big To Fail" (TBTF) framework. An SMR assigns specific responsibilities to the most senior managers and makes it easier for the supervisory authorities to identify those at fault. This commentary focuses on one of the 37 measures analysed by the Federal Council in its report (for a general commentary on the report, see[...]

In its ruling HG210122-O, the Zurich Handelsgericht rejected a company's claim for damages against a former private bank, on the grounds that no prior offence had been proven and that the bank had fulfilled its obligations in terms of combating money laundering. The company alleged that it had been defrauded by one of its suppliers in connection with a sale of fertilisers, as the products ordered never arrived. Part of the funds from this sale was transferred to a third-party[...]

Obtaining the relevant extracts from the database needed to assess FINMA's guarantees of irreproachable activity (formerly Watchlist) is a real crossroads for an employee who has temporarily given up exercising an activity subject to FINMA. The Federal Administrative Court (FAT) has confirmed that art. 8 aLPD (now art. 25 LPD) does not allow access to the documents that justified inclusion on the Watchlist to the same extent as in a genuine procedure on the merits to determine whether an individual[...]

A recent Geneva ruling illustrates the effects of a residual bank agreement combined with a claims clause when the existence of a client instruction is disputed by the parties in a one-off investment advisory relationship (ruling ACJC/231/2024 of the Civil Division of the Geneva Court of Justice of 13 February 2024). In 2003, a company based in the British Virgin Islands opened a relationship with a Swiss bank. The bank's general terms and conditions provided to the client contained a[...]

Since the adoption of the too-big-to-fail regime in 2011, article 52 BL stipulates that the Federal Council must examine the provisions of articles 7 to 14b BL three years after the system comes into force and then every two years, compare them with the corresponding international standards abroad and report back to the Federal Assembly, if necessary with proposals for amendments to the law or ordinances. In its report on systemically important banks of 4 June 2021 (FF 2021 1487),[...]

A protective criminal sequestration order may appear disproportionate when the proceedings in which it is involved drag on without sufficient grounds. Decision 7B_366/2023 of 14 February 2024 provides a rare illustration of the application of this principle by the Federal Supreme Court. The Federal Court lifted the sequestration orders issued in February 2018 on bank assets, as the Geneva public prosecutor had decided, but contrary to the decision of the cantonal court of second instance. In February 2018, an oil[...]

A bank that wishes to obtain a receivership against its clients in order to recover an overdraft resulting from an unsuccessful margin call and a liquidation of positions must make its claim plausible by means of detailed explanations and documents. Failing this, the judge must refuse - or revoke - the receivership (Federal Court ruling 5A_515/2023 of 23 February 2024). The dispute that gave rise to this judgment arose from a lombard loan granted by a Zurich bank to two[...]

The right of access under the DPA is abused when a person invokes it against a family office to obtain information concerning a trust and the financial situation of his father (ACJC/1610/2023). A very wealthy Italian businessman has a family office in Geneva, which performs various services for his daughter. Payments to her were made from the father's account. The father tells the family office that his daughter has a budget limit of EUR 100,000 per month. The daughter receives[...]

According to a popular German expression, "Totgesagte leben länger. Despite their oft-heralded demise, retrocessions continue to enrich the civil case law of the Federal Supreme Court. However, practitioners are still waiting for the Federal Supreme Court to take a definitive stance on whether retrocessions in execution-only relationships should be subject to restitution. Unfortunately, these hopes were dashed in the ruling presented here (TF 4A_496/2023 of 27 February 2024): "Damit braucht auf die umstrittene Frage, ob grundsätzlich auch im Execution only-Verhältnis[...]

An asset manager who does not comply with the conservative investment strategy agreed with his client is not in breach of his contractual obligations if the client has validly approved the investments (Federal Court ruling 4A_507/2023 of 29 February 2024). In this judgment, the client consults an asset manager to manage part of his assets. Over the years, the client entered into three different management relationships with the service provider. In the third relationship, which gave rise to the dispute,[...]

In a ruling 1C_543/2023 of 7 March 2024, which is intended for publication, the Federal Supreme Court (FSC) confirms its case law concerning the suspension of mutual assistance and the maintenance of sequestration of funds seized in Switzerland in execution of a request submitted by Russia prior to the aggression in Ukraine. It extended the suspension to a sequestration that had already lasted eight years and ruled out the possibility of invoking Article 2 EIMP. The Federal Criminal Court (FCT)[...]

In a ruling 7B_135/2022, the Swiss Federal Supreme Court details the conditions under which commissions resulting from contracts tainted by an offence of unfair competition may be subject to confiscatory measures (art. 70 and 71 of the Swiss Criminal Code). A Swiss public limited company active in private equity proposed, on behalf of a foreign entity, the purchase of shares in a German company operating in the medical sector. The search for new investors generally began with "cold" telephone calls.[...]

On 28 February 2024, the Federal Office of Police's Interdepartmental Coordination Group on Combating Money Laundering and the Financing of Terrorism (Fedpol) presented its second report on the money laundering risks associated with digital assets (i.e. digital assets based on blockchain technology such as Bitcoin or Ethereum). The report is of interest to financial intermediaries active in this area - in particular compliance functions - and proposes various recommendations to improve the fight against money laundering. It also highlights certain[...]

In a ruling dated 16 January 2024 (B_4185/2020), the Federal Administrative Court (FAT) upheld a FINMA decision of 19 June 2020 finding that a Swiss company and one of its directors had, as a group, engaged in unlawful securities trading, in the absence of authorisation, as an issuing house that had offered securities in the form of investment tokens to the public on a professional basis. As part of an initial coin offering (ICO) with a foreign issuer, the Swiss[...]

Do a fund manager's own plans and intentions constitute insider information if he engages in front running? This is the question that the Criminal Affairs Court of the Federal Criminal Court is answering in a case involving a former manager of second-pillar pension funds for employees of the canton of St. Gallen. In July 2022, the Office of the Attorney General of Switzerland (OAG) filed an indictment against a former employee of the Finance Department of the Canton of St.[...]

The Financial Stability Board (FSB) welcomes Switzerland's progress in implementing the Too Big To Fail (TBTF) rules, but stresses that there is still work to be done. Its second peer review report of 29 February 2024 covers the period 2022-2023 and targets systemically important banks (SIBs) operating internationally. The FSB's ten recommendations can be summarised as follows: Increase FINMA's resources quantitatively and qualitatively: in addition to increasing the size of its teams, the FSB recommends a strengthening of expertise to[...]