As a general rule, the statute of limitations for the initiation of contractual proceedings is ten years. In addition, interest rights are prescribed after five years. With regard to asset management agreements, it should be noted that the Swiss Supreme Court has specified that the statute of limitations for claims based on the reimbursement of incentives is ten years after the service provider receives the incentives. In the absence of a wealth management agreement or advice, financial intermediaries generally have an outright enforcement relationship with their clients. Their activity is therefore limited to the execution of the customer`s instructions. Independent asset managers or banks may also provide purely advisory services on the basis of advisory agreements (which are considered financial services under the Financial Services Act 2020 (FinSA). In this context, the client is advised in his own investment decisions or benefits from recommendations in this area. This type of agreement is not subject to specific regulatory provisions (with the exception of those contained in FinSA) and essentially complies with the general provisions of Swiss obligation law (SCO) applicable to mandate agreements. Notwithstanding the above, the parties may contractually limit their civil liability under Section 100 SCO.
Under this section, an agreement excluding liability for wilful misconduct or gross negligence is non-acute. In addition, a disclaimer for simple negligence may be considered null and void at the discretion of the judge if liability arises, among other things, from the conduct of a company that is operated under a formal licence (e.g. B, the banking licence in accordance with Swiss jurisprudence, which we believe should apply to wealth managers who are subject to new supervision). On the other hand, a bank (or, in our view, a regulated asset manager) may exclude liability for simple negligence by its representatives or representatives. Therefore, in their terms and conditions of sale, banks generally state that they can only be held personally liable in cases of wilful misconduct or gross negligence. However, private banking contracts will be supplemented, if necessary, by the ancillary obligations of the Securities Trading Act and MiFID II regulations. These obligations require, for example, a written framework agreement between the financial institution and its private client. The framework agreement establishes the main obligations and rights of the parties. In addition, financial institutions are required to provide certain mandatory information to their clients when they open a business relationship (for example. B a general overview of the financial institution, the types of financial instruments and the costs associated with the financial services offered). Asset management contracts are generally defined as mandate agreements, in which the client gives the bank or the independent asset manager the power to manage its assets on a discretionary or non-discretionary basis. These contracts, with a bank or other agency subject to prudential oversight, must meet certain regulatory and self-regulatory requirements.