Rejection of the request for future evidence to obtain documents related to the management of funds by a bank

Facts

In November 2006, A. Corporation (hereinafter: A.) entrusted the bank B. with a discretionary management mandate. The bank placed A.'s assets in two investment funds, the sole purpose of which was to collect money to invest with Bernard Madoff Investment Services (BMIS). After the 2008 financial crisis, the BMIS system collapsed and the bank blocked A.'s assets up to the amount corresponding to the alleged gains credited to the company.

In April 2014, A. filed a request for future evidence, seeking to obtain documents from the bank regarding the examinations and risk analyses carried out on the investments in the "Madoff funds", the decisions made by the bank's governing bodies, the internal correspondence and the documents relating to the retrocessions received by the bank. The Court of First Instance and the Court of Justice of the Canton of Geneva rejected this request.

Considerations

The Federal Tribunal rejected A.'s appeal against the cantonal judgment. It considered that the request for future evidence was not the appropriate way to assert the right to an accounting provided for in Art. 400 para. 1 CO, which is a substantive claim and not a procedural measure.

Indeed, the judge hearing a request for future evidence does not render a final judgment on a substantive right, but only…