With regard to the transfers paid by third parties in connection with the asset management activity (i.e. incentives), the Swiss Supreme Court ruled in a 2006 decision that incentives are subject to a legal obligation to repay and should in principle be paid to the client of the receiving financial intermediary. Nevertheless, an agreement whereby the client accepts that a financial intermediary can retain incentives is valid, provided that the client has been properly informed of the existence and formula for calculating these transfers and that the client expressly waives his legal right to restitution. In a decision handed down later on 30 October 2012, the Swiss Supreme Court ruled that the distribution charges paid by the distributor to the distributor through the engine of a financial product can be considered as retrocessions and are therefore subject to the same legal regime. Therefore, independent banks and asset managers who wish to retain third-party incentives must ensure that contractual documents relating to their customer relations comply with the requirements of the Swiss Supreme Court. In this context and from a regulatory point of view, the level of information (ex-ante) that must be made available to clients is detailed in FINMA Circular 01/2009 on the theme “Asset Management Guidelines” and in the guidelines of the relevant professional organisations. Asset managers are generally required to inform their clients of potential conflicts of interest that may result from the adoption of third-party incentives. In particular, they aim to inform their clients of the calculation parameters and the dissemination of the incentives they may receive from third parties (forward-looking information obligation) and the amounts of incentives actually collected in the past (retrospective reporting, at the customer`s request). It should be noted that the above principles of jurisprudence will be incorporated into the new FinSA. Under the new regulations, the disclosure requirement applies regardless of the existence of a mandate relationship (i.e. also in the case of a pure execution transaction).
From a contractual point of view, Swiss obligation law provides for each party a right to a mandate agreement to terminate the contractual relationship with immediate effect at any time. Such a provision is imperative and cannot be contractually amended. Regulation is no longer seen as the most urgent challenge among asset managers surveyed in Switzerland. Mood analysis shows that finding customers is causing the biggest concern in the industry. To continue to grow, Swiss asset management companies must offer their products and services internationally, as organic growth in the domestic market is rather limited. In particular, access to international markets on the basis of regulatory equivalency is important for asset managers operating in Switzerland. The greatest opportunities for the asset management sector in Switzerland lie in product specialisation and sustainable investments, as well as in robotic solutions and passive investments (see Figure 2). The living situation of each person and family is unique.
Together with you, we will determine the appropriate investment solution and define the appropriate investment strategy to ensure the optimal management of your assets. We focus on your needs and goals. In practice, Swiss banks and asset managers state in their contractual documentation that the relationship is governed by Swiss law. In the international context, such a choice applies according to PILA, provided that the contract is not considered a consumer contract (i.e. a contract for everyday consumer goods or services for personal or family use and not related to the consumer`s professional or commercial activity).