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What are the rights of customers under Swiss law?

Duties and Civil Liability

✓ Provisions governing mandate contracts (art. 394 ff. of the Swiss Code of Obligations; “CO”).

✓ Duties towards the client.

✓ Liable for any damage he causes to the principal, whether intentionally or through negligence.

✓ Conditions:

1. a breach of his obligations under the contract, in particular a breach of his duties of care and loyalty (Art. 398 para. 2 CO),
2. a damage,
3. a causal relationship (natural and appropriate) between the breach of contract and the damage,
4. and fault.

✓ General Terms and Conditions of the banks.

Ruling Swiss Federal Supreme Court (6 August 2022, Nr. 4A_659/2020)

✓ US – Nexus : involved a US sanctioned person and a transaction in USD.

✓ Contractual right of refusal: avert existing threats.

✓ No claim to performance under contract law.

✓ Supervisory law.

FINMA Circular 2023/1 Operational risks and resilience – banks

Criminal Liability

Criminal complaint for Coercion (Art. 181 of the Swiss Criminal Code) and/or for “Unlawful activities on behalf of a foreign state” (Art. 271 of the Swiss Criminal Code)?

“Coercion” could be “justified” if :

1. Requirement of foreign sanctions regulations

2. General terms and conditions of the banks

But: Many banks go way beyond foreign sanctions law / internal guidelinesand policies are not justified by foreign law.