Professional secrecy and AI vendors: contract requirements

Whether a financial institution or law firm may engage an AI vendor is governed first by professional secrecy, not by data protection law. This article sets out the three secrecy regimes, the doctrine of the agent, the relationship to data protection, the issue of model providers abroad and the points a contract has to cover. In our view, the decisive factor is not the vendor's technology but its legal position as agent or auxiliary, and the contract must establish that position expressly.

Three secrecy regimes, three different sanctions

Banks are bound by Art. 47 of the Banking Act, portfolio managers and other financial institutions under FinIA by Art. 69 FinIA, and lawyers by Art. 321 of the Swiss Criminal Code together with Art. 13 of the Lawyers Act. Art. 47 BankA and Art. 69 FinIA expressly cover agents. Art. 321 SCC covers the auxiliaries of the listed professions. Art. 47 BankA and Art. 69 FinIA are prosecuted ex officio and also punish negligent breach, with a fine of up to CHF 250,000. Art. 321 SCC is prosecuted only on complaint, and negligence is not punishable.

The agent doctrine carries the legal integration

The Federal Council's 1970 dispatch on the revision of the Banking Act names, as an example of an agent, a data centre that takes over a bank's electronic data processing. An agent is itself bound by secrecy, and disclosure to it is lawful to the extent the mandate requires.

In a 2016 decision (LGVE 2016 I No. 21), the Cantonal Court of Lucerne held that the mere existence of a mandate is not enough. There must be a serious interest in better service or lower cost, the circle of agents is to be read narrowly, and particular caution applies to providers abroad. Clients must be informed beforehand, although a general notice, for example in the terms of business, can suffice. Whether a provider is an agent follows from the specific relationship, as the Federal Supreme Court's analysis in BGE 145 IV 114 shows.

In our view, a general notice should at least name the categories of providers involved, the purpose of the disclosure and the countries in which data is processed. A notice that refers only to «IT service providers» gives clients little basis for an assessment and gives the institution little protection if the engagement is later challenged.

For Art. 69 FinIA, there is no Federal Supreme Court ruling yet. The wording is identical to Art. 47 BankA, and in our view the agent doctrine applies accordingly. Until this is confirmed, the contract carries the main weight.

Secrecy comes before data protection

Under Art. 9 para. 1 lit. b FADP, a processor may be engaged only where no statutory or contractual duty of confidentiality prevents it. Secrecy must therefore be examined before data protection. A data processing agreement does not cure a breach of secrecy. Disclosure abroad follows Art. 16 FADP, and the Federal Council recognises the EEA states as providing adequate protection. Art. 62 FADP applies in addition: anyone who intentionally discloses secret personal data learned in the course of their profession can be fined up to CHF 250,000 on complaint.

Model training abroad changes the assessment

Art. 273 SCC criminalises economic espionage, and client data of a Swiss portfolio manager are business secrets. According to the prevailing view in legal writing, transfer within a mandate that the institution knows and has authorised is not caught. The assessment changes as soon as a foreign provider uses the data for its own purposes, such as model training. A training exclusion enforced and evidenced along the whole chain is therefore legally necessary. On-premises operation avoids the question entirely.

For lawyers, the same reasoning applies to the auxiliary. An external IT provider is engaged as an auxiliary under an agreement covering secrecy, instructions and purpose limitation.

Six questions the contract must answer

In our view, a contract with an AI vendor should answer six questions:

1. Does the vendor expressly acknowledge its status as agent under Art. 69 para. 1 lit. a FinIA (or Art. 47 BankA), or as auxiliary, and submit to the duty of secrecy?
2. Is knowledge limited to what the service requires, and is every other use excluded, including training, benchmarking and product development?
3. Does protection extend beyond names and figures to metadata, logs and derived data?
4. Are all sub-processors and model providers named with their processing location, approved in advance under Art. 9 para. 3 FADP and bound to the same extent before they gain access?
5. Where is the data processed, and what basis under Art. 16 FADP applies to each disclosure abroad?
6. Can the portfolio manager, its internal audit, the audit firm, the supervisory organisation and FINMA audit the service, including at sub-processors?

How it works

Our confidentiality agreement covers all six points. In it, Unplex expressly acknowledges its status as agent under Art. 69 para. 1 lit. a FinIA and, for banks, Art. 47 para. 1 lit. a BankA. Protection covers metadata and derived data, training is excluded along the whole chain, and every sub-processor is bound before access. On the technical side, the Anonymiser complements the contract.

Conclusion

Whether an AI vendor may be engaged depends on its legal integration as agent or auxiliary. An institution that binds the vendor expressly, knows the processing chain and excludes training has a sound basis. As long as the question has not been decided for Art. 69 FinIA, the contract is the main source of legal certainty.

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Last reviewed: October 2026. General information, not legal advice.