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Scope of the accountability of asset managers - case law clarification
On March 25 2020, the Swiss Supreme Court clarified its case law on the scope of accountability of asset managers.
In essence, the Swiss Supreme Court recognised the right of the client of a Swiss bank to which it had entrusted an asset management mandate (per Art. 400 of the Code des Obligations) to obtain not only periodic extracts from his portfolio but also a list of all securities and foreign currency transactions carried out in execution of the mandate, with the date and price of each transaction, as well as the mail that remained "banque restante", in order to be able to reconstitute the management of the bank account for the entire duration of the mandate.
Importantly, the Swiss Supreme Court ruled that the client initiating such an accountability action does not have to prove a legitimate interest.
It should be noted that from now on, the client could also invoke the new Art. 72 LSFin to obtain a copy of his file from his financial services provider.
If, on the other hand, the requested documents relate to a period prior to 1 January 2020 (the date of entry into force of the LSFin) it seems wiser, in view of the principle of non-retroactivity of the law and in the absence of precise case law, to invoke Art. 400 CO instead.
For further information, please contact Bruno Ledrappier.
Patrick Gearon FCIArb
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