With regard to retrocessions paid by third parties in the context of asset management (i.e. incentives), Swiss case law allows private banks and asset managers to withhold retrocessions and other distribution costs that they receive in the context of their mandate only on the basis of a total waiver on the basis of informed consent from the client. In all other cases, the customer is entitled to such retrocessions and fees. These principles have been implemented in the new FIDLEG, according to which the disclosure obligation remains applicable independently of a contractual relationship (i.e. also for execution transactions). Accordingly, the receipt of retrocessions is allowed as long as the recipient expressly discloses such retrocessions, collects the customer`s agreement and provides detailed information at the customer`s request. In the absence of an asset management or advisory contract, financial intermediaries usually have a purely execution-oriented relationship with their clients. Their activity is therefore limited to the execution of customer instructions. The limitation period applicable to claims depends on the nature of the civil liability that the bank or independent asset manager may face. In practice, Swiss banks and asset managers indicate in their contractual documents that the relationship falls under Swiss law. In the international context, such a legal choice is valid under the Swiss Private International Law Act (PILA), unless the contract is labelled as a consumer contract (i.e. a contract for ordinary consumer goods or services intended for personal or family use and not related to the consumer`s professional or commercial activity).
If this is the case, the contract must be governed by the law of the State in which the consumer has his habitual residence, if: Notwithstanding the foregoing, the parties may contractually limit their civil liability within the limits set out in Article 100 OCS. Under this article, an agreement excluding liability for unlawful intent or gross negligence is voidable. In addition, the waiver of liability for simple negligence may be considered non-contractual at the discretion of the judge if the liability arises, inter alia, from the exercise of a transaction that is subject to administrative authorisation (e.g.B banking authorisation under Swiss case law; which, in our view, should apply to new asset managers subject to prudential supervision). On the other hand, a bank (or, in our opinion, a regulated asset manager) may exclude its liability for simple negligence on the part of its representatives or agents. . . .