Kickbacks and the resulting claims against Swiss asset managers

Regarding the assessment of kickbacks from Swiss banks it has to be distinguished between asset management agreements and investment consultancy agreements. If an asset management agreement between a client and a bank or an asset manager exists it is imperative to examine potential claims based on wrongfully withheld kickbacks.

Apart from claims against asset managers, in case of an involvement of an entity administered in Liechtenstein which is entitled to kickbacks, it is also possible to assert liability claims against the bodies of the entity based on omission of enforcement of said claims. This leads to a de facto prolongation of the limitation period for wrongfully retained kickbacks, since the negligence of the bodies as of the date at which they become aware of circumstances which require certain actions – in this case the reclamation of kickbacks – makes the bodies liable to their respective entity; this liability is subject to an individual prescription period.

It is essential to find a way to handle these arising issues, regarding the obligation of Swiss asset managers to surrender kickbacks as well as the potential liability exposure of bodies of legal entities domiciled in Liechtenstein, appropriately.

Enclosed you may find the whole contribution of Dr. Helmut Schwärzler, Mag. Josef Bergt and MLaw Fabian Vollrath of Schwärzler Attorneys at Law Liechtenstein | Zürich | Zug, published in Liechtenstein-Journal 01/2017.

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