61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

ing and closing of the account or deposit and the client’s basic personal data
should be kept for an unlimited period. 108
• A further question which arises is how the banks carried out their administrative
duties in respect of «unclaimed accounts». Here, it is important to
distinguish between arrangements in which the client commissioned the
bank to manage the assets (i.e., by granting an asset management mandate),
or whether the securities were deposited without such a mandate. In the first
case, the bank’s duty to manage the deposit in the interests of the client is
undisputed. However, as regards what may be termed the «open» deposit, it
must be assumed that the bank also had an obligation to carry out the proper
administration of the account without being specifically charged to do so:
it was thus required to collect dividends and interest for credit to the client’s
current account, and also to assert the client’s interests in respect of cancellations,
conversions and depreciation of securities, etc. The proper administration
of «unclaimed assets» also included the obligation – in cases where
urgent action was required – to take appropriate measures in the client’s
interest. 109
• Finally, the purpose of Swiss banking secrecy arises as an issue: can banks
invoke their duty to maintain confidentiality when non-authorised third parties
(e.g., the heirs of the entitled person) make claims against them? Banking
secrecy is based on the need to protect privacy: the banks’ duty to maintain
confidentiality can therefore only be presumed to exist if the disclosure
of information would violate the client’s legitimate interests. 110 In this sense,
Swiss banking secrecy does not generally preclude the possibility of the banks
actively searching for clients (or their heirs). 111
The Federal Council’s Decree of 20 December 1962 concerning the assets
located in Switzerland of foreign nationals or stateless persons persecuted on
racial, religious or political grounds (Registration Decree) imposed an
obligation on all asset managers in Switzerland to register assets about which
there had been no reliable information since 9 May 1945 and whose last known
owners were assumed to be the victims of racial, religious or political persecution.
112 This «‹exceedingly legalist› Federal Decree» 113 was not entirely
successful, and the issue of «unclaimed assets» thus remained unresolved.
Ordre Public as a «defence clause» in private international law
Ordre public is a general exemption clause in private international law 114 which
Swiss judges can invoke in a disputed case in order to refuse the application of
a foreign law and the recognition or execution of a foreign judgement.
According to the established legal practice of the Federal Supreme Court, this
«emergency clause» in the system of international civil procedure and private
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