Retrocessions: open questions and doctrinal debates

Focus and scope#

This note summarises the open questions and doctrinal debates on retrocessions as presented by Abegglen, with emphasis on (i) the unresolved execution-only surrender duty, (ii) the doctrinal split over the rationale of Art. 400 CO, and (iii) the supervisory/civil-law interface issues flagged in the contribution. [Abegglen pp. 2–4, 8, 11–12]

1) The unresolved “Gretchenfrage”: surrender duty in execution-only relationships#

Abegglen stresses that the Federal Supreme Court has still not answered whether a surrender duty exists in execution-only relationships, because in the cases before it sufficiently valid waivers were present and the Court therefore did not need to decide the underlying duty. [Abegglen pp. 2, 11–12] This has contributed, in Abegglen’s account, to a persistent cantonal split on when an “inner connection” exists and whether execution-only triggers surrender. [Abegglen pp. 2–4]

Abegglen summarises divergent approaches across cantons and courts, including:

• Geneva (first instance) oscillation: earlier first-instance decisions denied surrender in execution-only by reasoning that an inner connection requires a potential conflict of interest and that execution-only lacks discretion; shortly thereafter, another chamber affirmed surrender and treated inner connection as not limited to conflict cases, emphasising causality and a “Zuordnungsfunktion”. [Abegglen p. 3]
• Zurich and Bern (commercial courts): Zurich courts are described as consistently affirming inner connection already where a payment flows solely because the mandatary holds a position granted by the principal; Bern’s commercial court is reported as taking a comparable view and as denying that enrichment on the principal’s expense should occur without informed consent, even in execution-only. [Abegglen p. 3]
• St. Gallen (commercial court): St. Gallen’s commercial court is reported as taking the opposite view, denying inner connection in pure account/custody relationships (execution-only) because no conflict-of-interest risk exists without a advisory mandate. [Abegglen p. 3]

Abegglen’s own position—stated in his conclusion—is that the surrender duty should not apply in execution-only absent exceptional conflict potential, while acknowledging that the Supreme Court has not yet settled the issue. [Abegglen p. 11]

2) Doctrinal debate: “general enrichment / allocation function” vs conflict-of-interest prevention#

Abegglen describes a parallel split in the literature on whether a surrender duty can exist even without conflict-of-interest potential. [Abegglen pp. 3–4] He rejects the idea that Swiss mandate law contains a “general enrichment prohibition” and disputes that Art. 400(1) CO has a standalone “asset allocation function” divorced from conflict prevention; he characterises a purely causal approach as lacking a basis in the Federal Supreme Court’s jurisprudence. [Abegglen p. 8] To illustrate and support his reading, Abegglen points to jurisprudence under § 667 BGB (Germany), quoting the requirement that surrender presupposes not only an inner connection but also a concern that the mandatary might be induced to disregard the principal’s interests. [Abegglen p. 8] He also uses a concrete example (a mother paying part of the son’s wealth management fee to the bank) to show that a purely causal “position enables payment” rule would lead to counterintuitive outcomes, and he ties this to the observation that even the cantonal judgments invoking causality also rely on conflict-prevention considerations. [Abegglen p. 8]

3) Boundary questions: “genuine services” and the risk of hidden retrocessions#

Abegglen further highlights the need to distinguish retrocessions from remuneration for genuine services performed for third parties, listing cumulative criteria for when such remuneration is not subject to surrender and noting that excessive remuneration can raise the question of a hidden retrocession. [Abegglen p. 6] This boundary remains practically important because it delineates what belongs to the client (surrender duty) versus what constitutes permissible third‑party remuneration for independent services. [Abegglen p. 6]

4) Supervisory law vs civil law: alignment and tension points#

Abegglen repeatedly invokes the principle of the unity of the legal order and discusses the interaction of Art. 26 FIDLEG / implementing rules with the civil-law surrender/waiver logic. [Abegglen pp. 8–9] He also uses the parallel insurance-supervision regime (Art. 45b VAG, effective 1 January 2024) as support for a conflict-of-interest centred approach, i.e., surrender/acceptance restrictions tied to loyalty relationships with conflict potential. [Abegglen p. 9]

In his conclusion and footnote remarks, Abegglen flags a concrete tension point: he refers to FINMA Circular 2025/2 on conduct duties under FIDLEG/FIDLEV (Art. 26 FIDLEG) and notes that, while he does not elaborate, certain statements on waiver requirements are “insufficiently differentiated” and “partly inconsistent with civil law”, and that interpretation should consider the legislator’s will expressed in Art. 45b VAG. [Abegglen p. 12]

5) Outlook (source-limited)#

Within the bounds of this source, Abegglen’s outlook is that 2024 brought important Supreme Court clarification on waiver information (“Eckwerte”), the non-unusual nature of waiver clauses, and a client inquiry expectation, while the execution-only surrender duty remains the central open question. [Abegglen pp. 11–12]

References#

• Abegglen pp. 2–4
• Abegglen p. 6
• Abegglen p. 8
• Abegglen p. 9
• Abegglen pp. 11–12

Regulatory notice#

This publication is provided for information purposes only and does not constitute legal, tax or investment advice. It is not an offer, solicitation or recommendation. It is directed solely at qualified investors in Switzerland and is not intended for U.S. persons.