Newsletter: New decision on retrocessions

Zurich Commercial Court decision HG230143-O of 30 September 2025: Requirements for waiving retrocessions in investment advisory relationships

Background

On 27 February 2024, the Federal Supreme Court ruled for the first time on the requirements for waiving retrocessions in execution-only banking relationships and deemed advance waivers to be valid (4A_496/2023). However, it left open the question of whether there is any obligation to surrender commissions in execution-only relationships. We reported on this in a previous newsletter.

In a recently published decision (HG230143-O of 30 September 2025), the Zurich Commercial Court confirmed the Federal Supreme Court's case law on retrocessions and applied it to continuous investment advisory relationships. Among other things, the bank customers had sued for the surrender of retrocessions from structured products. The court dismissed the lawsuit.

Requirements for valid waiver of retrocessions

According to established case law, a valid advance waiver requires complete and truthful information about the expected retrocessions. For the customer to understand the extent of the expected retrocessions, they must at least be aware of the key parameters of the existing retrocession agreements with third parties and the scale of the expected retrocessions.

In this specific case, the customer was informed that the retrocessions would amount to 0-2% of the issue price of the structured products. Since the customer is aware of the issue price in investment advice relationships, the Commercial Court ruled that these constituted a suitable basis for calculation. The Commercial Court also considered the range of 0-2% to be sufficiently specific. The customer was therefore able to estimate the expected retrocessions. The advance waiver was thus valid.

Remarks

The Zurich Commercial Court applies the case law of the Federal Supreme Court and cantonal case law on the waiver of retrocessions to investment advisory agreements. The case law on the requirements for a valid advance waiver of retrocessions is thus further consolidated, which is a positive development.

In its considerations, the Commercial Court did not differentiate between transaction-based and portfolio-based investment advice. Contrary to certain academic opinions, the Commercial Court seems not to require that, in the case of portfolio-based investment advice, an additional percentage range in relation to the "assets under advice" must be specified. In our opinion, the Commercial Court rightly states that the client was able to estimate the expected retrocessions in this case, which is why the advance waiver was valid. The decision is not yet final (as of 12 February 2026).

Please do not hesitate to contact us if you have any questions on this topic.