Facts
The Pensionskasse X. (the plaintiff) concluded an asset management contract with Y. AG (the defendant) on 2 May 1996. The contract provided that the defendant would receive rebates on transactions carried out on behalf of the plaintiff. The plaintiff brought a lawsuit to obtain restitution of these rebates, which amount to 3'513'932.65 CHF and 118'673.66 CHF. The cantonal court granted the request, but the court of appeal overturned this judgment and dismissed the request.
The plaintiff filed a civil law appeal with the Federal Court, which partially admitted the appeal and overturned the judgment of the court of appeal. The Federal Court considered that the defendant had not proven that the plaintiff had validly waived restitution of the rebates.
Considerations
The Federal Court examined the conditions for a valid waiver by the client of restitution of rebates. It considered that the client must be fully and truthfully informed about the expected rebates and that their consent must be express and informed. The Federal Court also examined the provisions of the asset management contract and considered that the clause relating to rebates was null and void, as it did not meet the conditions for a valid waiver.
The Federal Court also considered that the defendant had not proven that the plaintiff was aware of the parameters for calculating the rebates and their expected…