Commentaries

In a recent decision, the Criminal Appeal Court of the Vaud Cantonal Court confirmed the plaintiff status of a company taking over a company following a merger by absorption (decision Jug/2023/314 of May 4, 2023, published on October 23, 2023). This is a deliberate departure from the strict case law of the Swiss Federal Supreme Court. The ruling in question is not final. It is therefore possible that the matter will be brought before the Federal Court in the near[...]

The issues surrounding the return of retrocessions can be simplified into two questions: (i) must a retrocession be returned to the client? If so, (ii) how much information must the client be given in order to validly waive this return? In its ruling HG210223-O of June 21, 2023 (now in force), the Zurich Handelsgericht confirms its case law to the effect that a bank bound by an execution-only relationship with its customer is obliged to make restitution. The court also[...]

How can an insurer object to having to compensate a listed company for damage estimated at nearly a million following a successful cyber attack? On the grounds that the payment would contravene US sanctions, since the cyberattack was allegedly the work of Russian hackers under sanctions. However, the Zurich Handelsgericht and then the Swiss Federal Supreme Court were not convinced by this argument (4A_206/2023). In July 2020, a company listed on the NYSE fell victim to an attack by the[...]

The Federal Council has just announced that it does not wish to pursue work on the creation of a trust under Swiss law. The final say will rest with the Federal Assembly, which could refuse to shelve the 2018 motion, but such a refusal is unlikely. Why did this project fail? Was it unnecessary? One might have feared that the introduction of the trust as an institution of Swiss private law, enshrined in the Code of Obligations without being a[...]

15 years after the collapse of Lehman Brothers and 13 years after the FINMA reports "Madoff affair and distribution of Lehman products: implications for investment advisory and wealth management activities" and "Distribution of financial products to private clients", the collapse of the Lehman Brothers investment bank is back in the spotlight. the collapse of the Lehman Brothers investment bank is back in the spotlight of the Swiss legal scene. Should a bank compensate a client who has suffered a financial[...]

The Federal Council's preliminary draft revision of the anti-money laundering provisions, put out to consultation on August 30, is, in part, déjà vu. Indeed, when the Money Laundering Act (AMLA) was last amended - and came into force less than nine months ago - a parliamentary majority curtly refused to make certain activities linked to the creation and management of domiciliary companies or trusts subject to the AMLA. As the representative of the Federal Council pointed out during the parliamentary[...]

Investing your savings in a start-up or crypto-currency involves risks. If the investment ultimately proves unsuccessful, can the investor complain of a scam in an attempt to recover his or her stake? In a final decision dated March 21, 2023 (ACPR/206/2023), the Geneva Court of Justice ruled in the negative, rejecting the appeals of some twenty unfortunate investors who felt they had been duped. A group of companies (called "S") is developing a payment system that can be used with[...]

In its ruling 4A_263/2022 of June 23, 2023, the Swiss Federal Supreme Court rejected an application for ancillary intervention by the heirs of a customer whose assets had allegedly been misappropriated, in proceedings pending between the bank and the current holder of the said assets. The Federal Court considers this to be a misuse of a procedural tool to exercise a substantive right of accountability. E., who died in 2014, held an account with Bank B SA in Geneva. His[...]

What are the requirements for proof of investment damage in an investment advisory relationship? In its ruling 4A_131/2022 of June 20, 2023, the Swiss Federal Supreme Court reiterates that the customer cannot simply claim, without supporting evidence, that the damage was too difficult to quantify, or that no investment would have been made if the bank had provided adequate advice (see also 4A_202/2019 commented in Laurent Hirsch, cdbf.ch/1110/). Between March 2012 and May 2013, a client had an investment advisory[...]

In the course of unsealing proceedings, the disputed data may not be passed on to other parties and participants in the proceedings, even if disclosure is prohibited. This is what the Federal Supreme Court said in its decision 1B_635/2022, 1B_636/2022 of June 15, 2023. The Geneva Public Prosecutor's Office was conducting criminal proceedings for various economic offences against former and current employees of a bank. In June 2022, it carried out a search of the bank's premises. All e-mails in[...]

To what extent can a person whose data is subject to an automatic exchange of information demand that the Federal Tax Administration (FTA) issue a challengeable act? The Federal Supreme Court addresses this question for the first time in its ruling 2C_946/2021 of June 6, 2023, which is intended for publication. Information relating to a trust and its two settlors (both Argentine residents) was transmitted to the FTA as part of an automatic exchange of information in tax matters. Believing[...]

Is an employee who fails to negotiate down the price of work awarded to a third party, and who receives retrocessions on the price paid to the third party, guilty of unfair management towards his employer within the meaning of art. 158 of the Swiss Criminal Code? The Federal Supreme Court's decision 6B_280/2022, 6B_287/2022 of April 14, 2023 is in the affirmative. The facts can be summarized as follows: between 2003 and 2012, two employees set up a scheme with[...]

If the principle of speciality is violated as a result of administrative assistance, does the person concerned have a right to have the Federal Council intervene with the requesting state? In a ruling 2C_236/2022, intended for publication, the Federal Supreme Court clarifies whether positive obligations against Switzerland can result from arts. 8 and 13 ECHR. In 2011, FINMA granted administrative assistance to the French Autorité des marchés financiers (AMF), which requested the transmission of documents relating to transactions carried out[...]

The Federal Supreme Court's decision 1B_92/2023 of May 11, 2023 is in line with case law: at the sealing stage, the right not to incriminate oneself does not preclude the use, in (administrative) criminal proceedings, of an internal investigation report drawn up by a bank on behalf of FINMA. The case of inexploitability of the evidence is not clear-cut and the question must therefore be dealt with by the trial judge. In 2017, FINMA sent a criminal complaint to the[...]

In its ruling 4A_389/2022 of March 14, 2023, the Swiss Federal Supreme Court examined a request for mutual assistance in civil matters, in which a bank was asked to provide documents relating to a client. In 2012, the MPC opened criminal proceedings against the former CEO of a state-owned institution in Y for money laundering and fraudulent mismanagement. Judging that there was a risk that the documents obtained in the criminal proceedings might be passed on to State Y, the[...]

On May 17, the Europe Middle East & Africa Credit Derivatives Determinations Committee (DC) of the International Swaps and Derivatives Association (ISDA) issued an initial ruling on the absence of government intervention constituting a credit event for credit default swaps (CDS) on Credit Suisse's subordinated bonds for the amortization of Additional Tier 1 (AT1) bonds. The day after its decision, the DC received a second request to establish whether a bankruptcy constituting a credit event had occurred in respect of[...]

In a recent decision intended for publication, the Swiss Federal Supreme Court confirms that a request for mutual assistance for the enforcement of a foreign decision imposing a sanction corresponding in Switzerland to a compensatory debt (art. 71 CP) can only be executed in application of art. 94 ff EIMP (TF, 21.04.2023, 1C_624/2022). In 2011, following requests for mutual assistance from Belgium, the Zurich Public Prosecutor's Office ordered the precautionary seizure of the bank assets of a man named Edouard[...]

All the players involved - CS/UBS, FINMA, the Swiss National Bank and the Federal Department of Finance - should begin by themselves examining the takeover of CS by UBS ordered by the authorities. This would provide a starting point and framework for parliamentary clarification, and facilitate a fact-based Swiss and international discussion on the regulation and supervision of globally systemically important banks such as the future UBS. A necessary update The takeover of CS by UBS, ordered by the authorities,[...]

Of course, the full consequences of the Credit Suisse rescue are not yet known. Between March 16 and 19, the Federal Council, the SNB, FINMA and the Boards of Directors of UBS and Credit Suisse took the decisions that enabled the two banks to merge (see https://cdbf.ch/1272/). The SNB granted extraordinary loans to Credit Suisse, secured by two federal loans. A first urgent commitment credit was granted in the form of a default risk guarantee of up to CHF 100[...]

The Federal Supreme Court's ruling 2C_747/2021 of March 30, 2023 provides an interesting description of the link between breaches of anti-money laundering duties of care and the imposition of a ban on practice under Art. 33 FINMASA. On May 23, 2016, FINMA opened enforcement proceedings against Bruno, who worked as Head of Legal & Compliance at Banque de la Suisse Italienne (BSI). At the end of the enforcement proceedings, FINMA imposed a 3-year ban on Bruno (art. 33 LFINMA). The[...]

In a ruling dated March 30, 2023 (B-4004_2021), the Federal Administrative Court (FAT) found that the additional capital requirements imposed by FINMA on PostFinance SA (PostFinance) on the basis of art. 131b cum 45 let. b of the Capital Adequacy Ordinance (CAO) and its practice set out in FINMA Circular 2019/2 "Interest rate risks - banks" (the Circular) to address the risk of rising interest rates were in accordance with the law. This ruling follows a previous decision by the[...]

A revised version of the Swiss Code of Best Practice (SCBP 2023) has recently been published by economiesuisse. The CSBP is a series of non-binding recommendations, which are primarily aimed at listed companies, but can also serve as a basis for unlisted companies. As in previous editions, the Swiss Bankers Association was involved in drafting the CSBP. As in the case of some of the legal bases newly revised as part of the revision of corporate law, the CSBP as[...]

In 2004 (second partial report of the Commission of Experts, "Sanctions in financial market supervision"), when FINMASA was adopted, and again in December 2014 (FINMA and its regulatory and supervisory activities, report of the Federal Council in response to various postulates), it was decided not to give FINMA the power to impose fines. The Federal Council (report, p. 42) explained its position as follows: "The Federal Council also concludes that FINMA should not be granted the right to impose fines.[...]

The Federal Court's decision 4A_539/2021 of February 21, 2023 is a further illustration of the methodology applied by our High Court to apprehend the legal consequences of fraudulent orders. This ruling enshrines the principle that, when breaches of due diligence attributable to both the customer and the bank are the cause of fraudulent orders executed from the customer's account, the apportionment of damages must be determined by weighing up the respective faults. The factual situation can be summarized as follows.[...]

In a (probably recent) undated decision, FINMA confirms the publication of a press release relating to the closure of enforcement proceedings against an expressly named subject. In particular, this decision allows FINMA to argue that such publication does not constitute a sanction (naming and shaming within the meaning of art. 34 FINMASA), but only information to the public within the meaning of art. 22 FINMASA. At the end of an enforcement procedure, FINMA informs the subject of the procedure that[...]

A wealthy customer and a bank have been doing business for over 30 years. As part of an execution-only contractual relationship, the customer orders forward currency transactions (RUB/JPY and RUB/CHF). On December 16, 2014, due to a sharp fall in the Russian ruble exchange rate, the bank prematurely closes the forward transactions after contacting its customer, resulting in losses for the latter. The customer initiated legal proceedings to claim compensation equivalent to the smaller loss he would have suffered had[...]

In a ruling 1B_509/2022 of March 2, 2023, the Federal Supreme Court was called upon to clarify the scope of attorney-client privilege in the context of internal investigations within financial institutions, an issue it had already outlined, albeit in less detail, in two previous cases (one giving rise to ruling 1B_85/2016 of September 20, 2016, the other to rulings 1B_433/2017 of March 21, 2018 and 1B_453/2018 of February 6, 2019, cf. cdbf.ch/1053). The Geneva Public Prosecutor's Office has been conducting[...]

To what extent can the customer of a bank in bankruptcy request the segregation of his assets from FINMA when his request has been initially rejected by the liquidators? In ruling B-2367/2020 of December 13, 2022 (now in force), the Federal Administrative Court (FAT) addresses this question, analyzing in particular FINMA's powers in a bank failure. On October 21, 2015, a customer of a banking institution instructed his bank to immediately transfer his entire fiduciary deposits to another bank. The[...]

FINMA has just published its annual report, which reviews the year 2022 and outlines the priorities for supervision. These include issues and challenges posed by the current geopolitical context and inflation, money laundering supervision, climate risk and anti-money laundering supervision, and digitization of the financial sector. This last point is the subject of this commentary, which discusses FINMA's practice in relation to cryptoassets and takes stock of artificial intelligence (AI) in the financial sector. FINMA notes an expansion in the[...]

In a ruling dated December 1, 2022 (CA_2022.10), the Appeal Chamber of the Swiss Federal Criminal Court (TPF) found the director (A.) of a company (the issuer) guilty of failing to prevent tokens issued after an ICO from being transferred to participants' wallets, even though neither the issuer nor A. were affiliated to a self-regulatory organization (SRO) in accordance with the MLA. A. was convicted of having intentionally exercised a financial intermediary activity, in a professional capacity, in violation of[...]