Practical Example

IDEAL CASE

  • The assets were managed by a Swiss bank for more than 10 years and have (since) been declared for tax purposes in the beneficial owner’s resident country
  • On average, the assets are/were more than EUR/CHF 1,000,000
  • An asset management agreement was concluded with the bank
  • Asset statements for the last ten years are available
  • The client has not waived claims to reimbursement
  • The portfolio/custody account consists mainly of
    • funds (e.g. real estate funds, hedge funds, equity funds)
    • certificates
    • structured products
  • The bank has already disclosed the distribution commissions for the entire term of the agreement
Kickbacks Praxisbeispiel
Kickbacks Praxisbeispiel

Practical Example

NORMAL CASE

  • Assets of over CHF/EUR 500,000 were managed by a Swiss bank or a Swiss asset manager for over five years
  • The amount of the claim, and the identity of the party contesting it, are unclear
  • The bank/asset manager did not have power of disposal over the assets on the basis of an asset management agreement
  • The basic documentation (account opening documents, asset statements, etc. ) is incomplete
  • The portfolio/custody account consists/consisted partially of equities (individual securities) and/or fixed-income securities (bonds)
  • The claimant cannot assess the cost risk of enforcing his claims

Practical example

DIFFICULT CASE

  • The assets were managed by a subsidiary of a Swiss bank (e.g. a trust or insurance company), or a fiduciary
  • The reimbursement claims have been transferred to another legal entity (e.g. a foundation)
  • The beneficial owner has waived reimbursement of distribution commissions
  • The basic documentation (by-laws of the foundation, account opening documents, etc.) is no longer available
  • The portfolio/custody account consists/consisted mostly of equities (individual securities) and/or fixed-income securities (bonds)
  • Due to the prevailing conflict of interests, the claimant has no interest in enforcing reimbursement claims against the bank/asset manager
  • The beneficial owner is not prepared to bear the financial risk of a legal dispute with the bank/asset manager
Kickbacks Praxisbeispiel

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