Scientific article
OA Policy
English

Do Robots Rule Wealth Management? A Brief Legal Analysis of Robo-Advisors

Publication date2022
Abstract

What are the legal duties of robo-advisors in Switzerland? In this article, we focus on the legal framework arising from Swiss financial market law, contract law and data protection law. We also make a comparison with European law. We first explain how robo-advisors work and conclude that, contrary to what their name may suggest, they are primarily portfolio managers. As financial service providers, they shall first establish the client’s profile and the investment strategy. They must also provide information on “the financial service personally recommended” (Art. 8(2)(a) FinSA). Therefore, they must explain that the investment decisions are based on algorithms. Nevertheless, they do not have to provide an in-depth explanation of the functioning of these algorithms. Under contract law, these same duties (establishment of the client’s profile and the investment strategy, duty to inform) arise from the service agreement (Art. 398(2) CO). However, the analysis of civil liability may be more complex. Under the new Federal Data Protection Act (FDPA) and the General Data Protection Regulation (GDPR), robo-advisors may specifically have to comply with the “Automated Individual Decision-Making” legal mechanism (Art. 21 FDPA and Art. 22 GDPR) when clients invest a large amount of their assets through robo-advisors. Consequently, they must inform the client that the investment decisions are automated. They must also, on request, explain the logic involved in the automated decisions. However, they have no obligation to disclose their algorithm.

Keywords
  • Robo-advisors (robots conseillers)
  • Gestion de portefeuilles
  • Décision individuelle automatisée
  • Protection des données
  • Droit européen
  • Droit suisse
  • Droit bancaire
  • Gestion de patrimoine
  • Robo-advice
  • Contract law
  • Wealth management
  • Financial services
  • Algorithms
  • Data Protection
  • GDPR
  • Financial market law
Citation (ISO format)
HIRSCH, Célian, MERLINO, Nastassia Yasmina. Do Robots Rule Wealth Management? A Brief Legal Analysis of Robo-Advisors. In: Schweizerische Zeitschrift für Wirtschafts- und Finanzmarktrecht, 2022, vol. 94, n° 1, p. p.33–50.
Main files (1)
Article (Published version)
accessLevelPublic
Identifiers
  • PID : unige:159406
Journal ISSN1662-8705
725views
96downloads

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Creation07/03/2022 10:24:00
First validation07/03/2022 10:24:00
Update time16/03/2023 02:48:46
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