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From the magazine SZW-RSDA 2/2017 | S. 126-143 The following page is 126

La banque exposée aux prétentions de tiers : art. 402 CO et rétention ­d’actifs de clients

The so-called claw-back suits filed by the liquidators of Fairfield Sentry and other feeder funds involved in Bernard Madoff’s bankruptcy have prompted the defendant banks to secure their recourse against their clients by withholding money and other assets in their custody. This article analyses the legal basis for the retention of client assets under Swiss law. It concludes that, except when the bank has improperly performed its service (e.g., negligent advice), it has a recourse against its client in respect of the repayment obligations such as the ones currently litigated in the U.S. Claw-back claims allocate losses among investors. Whatever their outcome, it is part of the investment risks. Despite contradictions between two recent cases, assets pledged by investors in the context of the investments services they contract secure the bank’s right of recourse. Absent a contractual pledge or a legal lien, the bank may also require security (sûretés) to cover its expected expenses and…

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