Prescription periods for retrocession claims: source-limited note

Scope limitation (important)#

The provided source does not set out the statute of limitations / prescription framework for retrocession claims (e.g., applicable limitation periods, triggering events, interruption, or the interaction with restitution doctrines). These points are therefore not in source and are excluded from this note.

The contribution does, however, address several time-related aspects that often arise in practice around retrocession disputes (especially where waivers and disclosure evolved over time). The remainder of this note is limited to those aspects. [Abegglen pp. 10–11]

Where “prescription” appears in the source#

Abegglen’s text contains no substantive discussion of limitation periods; the only identifiable appearance is a bibliographic reference to work on “Herausgabepflicht und Verjährungspraxis” in the literature overview. [Abegglen p. 4]

The temporal dimension the source actually discusses: retroactive waivers#

A central 2024 novelty highlighted by Abegglen is the Federal Supreme Court’s first assessment of an explicitly retroactive waiver in AGB (general terms and conditions) introduced in a repapering exercise, under which the client waived “future and past Trailer Fees”. [Abegglen p. 11] Both the Zurich Commercial Court (as lower court) and the Federal Supreme Court considered that expressly agreed, after-the-fact retroactive waiver admissible and valid in the circumstances described. [Abegglen p. 11] From a practical standpoint, Abegglen’s discussion shows that retrocession disputes are often “time‑layered”: the relevant contractual clause may be introduced later (repapering), and the legal assessment then turns on what was agreed and how the client’s will was documented at that later point. [Abegglen p. 11]

Time-layered disclosure: factsheets and evolving bandwidth disclosure#

Abegglen also reports a cantonal appellate decision from Geneva that went further than the Federal Supreme Court’s explicit retroactivity case, treating a waiver as effectively retroactive even without an explicit retroactivity clause in the original AGB. [Abegglen p. 11] In the scenario described, the AGB contained a waiver clause from 2009, but bandwidth information was only introduced later (first via a separate “Remuneration factsheet” and later via the AGB clause itself). [Abegglen p. 11] The Geneva appellate court upheld the waiver on good-faith grounds because, as reported by Abegglen, the client had knowledge (at the latest by 2012) that the original disclosure was unclear and could have reacted (e.g., revoked/contested) but did not do so in time. [Abegglen p. 11] This discussion is not a prescription analysis, but it illustrates why the timeline of disclosure and the client’s knowledge can become central in retrocession litigation even before one asks “how long” claims can be pursued. [Abegglen p. 11]

Client inquiry expectation and timing#

Another temporal element described by Abegglen concerns client inquiries. In the February 2024 Federal Supreme Court decision, Abegglen reports that the Court acknowledged that the exact amount of retrocessions can be obtained by asking the provider and that the client is entitled to request more detailed information “before or after an investment”. [Abegglen p. 11] Abegglen reads this as the recognition of a (partial) “question obligation”, which can matter when a client later seeks to invalidate an earlier waiver by arguing that the exact quantum was not known. [Abegglen p. 11] The practical consequence is that institutions should be able to evidence when clients were informed of their right to ask for details and how they could do so (and, where relevant, that they did). [Abegglen p. 11]

Periodicity and annualised disclosure as part of the waiver architecture#

Abegglen’s account of “industry-standard disclosure” also has an explicit time component: retrocession bandwidths are commonly expressed as percentage ranges “on an annual basis” relative to the investment volume (and, for wealth management, relative to managed assets). [Abegglen p. 10] In the February 2024 decision, the Federal Supreme Court accepted this approach and rejected demands that would require per‑fund granular disclosure in advance, emphasising that such an approach would be practically impossible and would generate an excessive information flood. [Abegglen p. 10]

What remains outside this source#

The following points are not in source and are excluded:

• statutory limitation periods applicable to retrocession surrender claims;
• the doctrinal classification of the claim for limitation purposes;
• rules on interruption/suspension, knowledge requirements, and burden of proof;
• interaction between limitation and waiver/repapering.

2024 as a practical watershed (source-limited observation)#

Abegglen characterises 2024 as a particularly important year in the Federal Supreme Court’s retrocessions jurisprudence. He highlights the clarification of waiver requirements (including what is meant by “Eckwerte”), the confirmation that waiver clauses are not unusual, and the recognition of a client inquiry expectation, while noting that the execution‑only surrender question remains open. [Abegglen pp. 11–12] He also refers to FINMA Circular 2025/2 on conduct duties under FIDLEG/FIDLEV (Art. 26 FIDLEG) and expresses the hope that supervisory practice will be applied in line with the Supreme Court’s case law rather than “word for word”. [Abegglen p. 12]

References#

• Abegglen p. 4
• Abegglen p. 10
• Abegglen p. 11

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.