Facts
The appellant, Viktor Vekselberg, is a Russian citizen with residence in Switzerland. He is particularly active in the energy sector and holds numerous participations, including in the listed companies OC Oerlikon and Sulzer AG. The respondent, PostFinance AG, is a stock corporation based in Bern, which is responsible for ensuring the nationwide basic supply of payment transaction services.
In April 2018, the appellant was listed by the US Office of Foreign Assets Control (OFAC) as a Specially Designated National and Blocked Person (SDN) in the context of the extended sanctions against Russia. The respondent then terminated the business relationship with the appellant, as it feared that continuing the relationship would lead to a disproportionate effort.
The appellant applied to the Commercial Court of the Canton of Bern to obligate the respondent to maintain the business relationship with him and to continue the postal account in Swiss francs with the number xxx, in the name of the appellant. The Commercial Court dismissed the action, as it was of the opinion that the respondent was entitled to terminate the business relationship in order to avoid a disproportionate effort.
Considerations
The Federal Court upheld the appellant's appeal and overturned the decision of the Commercial Court of the Canton of Bern. The court came to the conclusion that the respondent was not entitled to terminate the business relationship with the appellant, as the exception of disproportionate effort is not supported by the wording of Art. 45 para. 1 lit. a of the old PostSA (VPG).
The court found that the lower court had relied on a temporal interpretation, arguing that the changes coming into force on 1 January 2021 were merely an editorial clarification. However, the court came to the conclusion that this is not relevant, as in fact an additional significant restriction of the contractual obligation was made.
The court found that the respondent could…