Commentaries

In a ruling dated 19 August 2021 (2C_530/2020), the Federal Court reiterated the principles applicable to the calculation of confiscable gains within the meaning of Art. 35 LFINMA. A public limited company X authorised by FINMA as a manager of collective investments within the meaning of the LPCC (authorisation now known as manager of collective assets since the relevant provisions were transferred from the LPCC to the LEFin) had entered into business finder contracts with a public limited company Y[...]

The International Organization of Securities Commissions (IOSCO) recently published an update of the principles on outsourcing established in 2005 for market intermediaries and in 2009 for stock exchanges. This update is due to new technological developments and recent developments in the field of outsourcing. Firstly, the personal scope of these principles has been broadened. They apply not only to the aforementioned entities, but also to trading platforms (in particular multilateral trading facilities), participants in the financial markets acting on their[...]

On the sidelines of COP26, FINMA published a communication on supervision regarding the prevention of and fight against greenwashing. This document sets out FINMA's expectations for combating this practice in the investment fund sector. First of all, it reiterates that several initiatives have been taken at national and international level to increase sustainability transparency for investors and clients. Indeed, one of the main challenges in preventing and combating greenwashing is access to objective and accurate information on the sustainability of[...]

In judgment 6B 379/2020 intended for publication, the Federal Court details the conditions under which the intermediary's fees in the context of a corruption scheme may be subject to confiscation measures (articles 70 and 71 PC). The Brazilian and Swiss criminal authorities were each conducting proceedings against Alexis, a middleman in the context of the award by Petrobras of operating contracts to B. Inc. and C. BV. with a total estimated value of USD 2,680,000,000. Following solicitations from the directors[...]

In a decision of 24 November 2020 (ACJC/1653/2020), the Court of Justice of Geneva ruled on the validity of a request for payment made under a bank guarantee. The peculiarity of the ruling lies in the fact that the request did not come from the beneficiary itself but from a third-party assignee, which had then merged with the principal. The Court of Justice concluded in essence that, in addition to being formally non-compliant, the appeal to the disputed guarantee was[...]

Does an employee who uses a company credit card for private purposes commit a breach of trust to the detriment of his or her employer? The Federal Supreme Court answered this question in the affirmative in its ruling 6B_701/2020 of 11 June 2021. A bank grants an executive secretary a credit card in her name and for her exclusive use to enable her to pay her business expenses independently. Each month, the employee receives a statement which she must check[...]

In its judgement 4A_223/2021 of 26 August 2021, the Federal Supreme Court ruled on an action for the protection of clear cases concerning the surrender of 299 ounces of physical gold. This dispute has already given rise to a ruling by the Federal Court, which referred the case back to the Obergericht of the canton of Aargau for a new judgement on the application of the clausula rebus sic stantibus (4A_263/2019 of 2 December 2019, commented on in cdbf.ch/1109/). By[...]

Following on from an initial ruling in which it had ruled that an access request whose objective was to obtain information to be used in a lawsuit against the recipient of the request was abusive (4A_277/2020 of 18 November 2020), the Federal Court is continuing its case law aimed at limiting the scope of the right of access under the Data Protection Act (ATF 147 III 139). Although delivered in a very specific context, this ruling nevertheless offers interesting lessons,[...]

Ten years after the entry into force of the Uniform Rules for Demand Guarantees (URDG, ICC publication no. 758), the International Chamber of Commerce published in 2021 the International Standard Demand Guarantee Practice for URDG 758 (ISDGP, ICC publication no. 814), adopted by the ICC Banking Commission in March 2021. The collection consists of a set of practices (‘best practices’), inspired by international customs and intended to complement URDG 758. The text is published exclusively in English. Like the URDG,[...]

How can you prove your loss when a bank does not execute the order to buy shares? ATF 147 III 463 (Federal Court decision 4A_606/2020, intended for publication) provides some welcome clarification. A client asked his bank to purchase 25,000 Twitter shares at a price of USD 25 when the company went public on 7 November 2013. The bank confirmed the purchase of these shares on 6 November. However, on 11 November, the bank informed the client that it had[...]

On 22 September 2021, FINMA published a Practical Guide aimed at setting out its practice regarding changes within banking bodies and, more specifically, at providing an overview of the assessment criteria that it generally applies in the context of examining the guarantee of irreproachable activity. Concept of body The concept of a governing body extends to the persons responsible for administering and managing the bank. Holders of qualified participations, although also subject to an examination from the point of view[...]

When a bank informs its client that it will liquidate his securities if he does not react within the allotted time, can the client complain after the fact about the liquidation of his securities? The Federal Court addressed this issue in its ruling 4A_354/2020 of 5 July 2021. A Mexican national has had a bank account in Geneva since 2006. In 2010, the bank amended its general terms and conditions so that it could terminate the contractual relationship at any[...]

Background The case concerns five investors who subscribed to (unlisted) shares in a public limited company when it was founded or during subsequent capital increases. They consider that they were misled by inaccurate information contained in the issue prospectus on which they based their investment decision. They brought a civil action before the Commercial Court against various persons and entities who had participated in the drafting or dissemination of the disputed prospectus, claiming damages from them jointly and severally, in[...]

In a Memorandum dated 25 June 2021, the Federal Data Protection and Information Commissioner gives his opinion on the lawfulness of the transfer of personal data to the Securities and Exchange Commission (SEC) by Swiss companies registered with this American authority. The SEC contacted the Federal Commissioner in December 2020 to find out if and under what conditions Swiss companies could transmit personal data to it as part of its oversight. Even if the Memorandum does not specify it, one[...]

In a ruling 6B_103/2021 of 26 April 2021, the Federal Court once again considers the status of the complainant as the holding of a group of companies, one of whose subsidiaries has been the victim of acts of disloyal management (art. 158 CP). The facts are relatively complex, but can be summarised as follows. Company A SA is the Geneva-based holding of company group A, which is active in the pharmaceutical sector. C and E are shareholders and directors of[...]

On 12 May 2021, the Court of Justice of the European Union (CJEU) issued a ruling in which it restricted the competent courts under Art. 7(2) of the Brussels I bis Regulation (BI bis) for investor actions. According to the CJEU, only the courts of the state in which a listed company must fulfil its legal reporting obligations can be seized for these disputes (C-709/19). In this case, the Vereniging van Effectenbezitters (VEB), a Dutch association of shareholders, had taken[...]

The theory of nudges, developed by American academics Richard Thaler (Nobel Prize in Economics 2017) and Cass Sunstein, postulates that it is possible to regulate certain behaviours without implementing restrictive rules. Instead, Thaler and Sunstein suggest influencing human choices using various methods of elementary psychology, with the aim of encouraging certain socially beneficial behaviours, without, however, making them compulsory. A typical example is that of a cafeteria: it is possible to encourage people to eat better, but without reducing their[...]

In its ruling 4A_599/2019, the Federal Court considered a request for the submission of accounts by a client against his bank following a dispute over a margin call. In November 2010, the client opened an account with a Swiss bank in order to invest his assets through foreign exchange transactions and by buying and selling options on currencies and precious metals. He received a loan from the bank and signed a general pledge agreement. After the SNB abandoned the minimum[...]

The CDB Supervisory Commission recently published its traditional overview of its decisions for the second half of 2020. After a restricted financial year due to Covid-19 at the beginning of the year, supervisory activities resumed their normal course in the summer of 2020. While no notable reversal of case law has been reported, a few cases are worth mentioning. Firstly, with regard to procedure, Art. 60 para. 1 CDB (investigation procedure) does not make the opening of an investigation for[...]

Who, the bank or the customers, should bear the damage caused by the execution of orders from hackers? Shortly after the ATF 146 III 326 (cf. cdbf.ch/1150/), in which the Federal Court denied a trading company's gross negligence, the Ticino Court of Appeal was confronted with the same issue. Contrary to the decision of the Federal Court, it finds that the bank committed a serious offence, emphasising the danger of email communications (Judgment 12.2019.148 of 18 September 2020). Two brothers,[...]

In a judgement 1C_196/2021 of 28 May 2021 intended for publication, the Federal Supreme Court clarifies the concept of secondary insider within the meaning of Art. 154 para. 3 FMIA in the context of an extradition request. On 5 January 2021, the Federal Office of Justice (FOJ) ordered the extradition of an individual A. (Appellant) to the United States. He is accused of having committed large-scale insider trading offences from 2013 to 2017. A. and an accomplice are alleged to[...]

In its judgement 4A_287/2020 of 24 March 2021, the Federal Supreme Court considers the question of the enforcement of a decision to render an account, and makes three cautions: the conclusions to be enforced must be precise, possible and covered by the decision on the merits. A company and a bank were bound by a set of banking contracts, in particular for the purchase and sale of options, as well as by a Lombard loan, which gave rise to disputed[...]

After a Report 2019 reduced to statistics, the Report 2020 returns to a format more in line with the tasks of the MROS, which include raising awareness among financial intermediaries (see typologies in section 5) and informing the public about developments in the fight against money laundering. Statistics (section 4) MROS has changed its working method, making direct comparison with previous years difficult. However, it provides information that allows a certain degree of comparability to be restored. The trends of[...]

On 19 May 2021, the Federal Council adopted the Dispatch on the Federal Act on the Regulation of the Activity of Insurance Intermediaries. This draft law, which amends the Federal Health Insurance Act (LSAMal) and the Federal Insurance Act (LSA), aims to regulate the activity of intermediaries active in social health insurance and supplementary health insurance. As a reminder, the Federal Office of Public Health is responsible for supervising insurers active in social insurance, while the FINMA is responsible for[...]

SIX Exchange Regulation SA, the regulatory and supervisory body of the SIX Swiss Exchange, has announced a change to the Listing Rules (LR), the Directive on Ad hoc Publicity (DAP) and the Directive on Information relating to Corporate Governance (DCG) concerning ad hoc publicity, which will come into force on 1 July this year. This revision introduces an obligation to qualify event-driven announcements as such (‘flagging’). It modifies the definition of facts likely to have an influence on prices in[...]

Following the rejection on 29 November 2020 of the popular initiative ‘Responsible Businesses - Protecting Human Rights and the Environment’, the indirect counter-project should, barring a referendum, amend accounting law as of 1 January 2022 with an obligation of transparency on non-financial issues (art. 964 bis to 964 quater CO) according to the model of Directive 2014/95/EU and obligations of diligence and transparency regarding minerals and metals from conflict zones and child labour (art. 964 quinquies to 964 septies )[...]

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[...]