Title: Anticipated Defenses and Legal Rebuttals under Swiss Procedural and Financial Law
Author: Joe L. White, Jr
Date: July 01, 2025
Reference: Conciliation Request – Nexo AG, Canton of Zug
Purpose
To preemptively and respectfully rebut anticipated legal and factual defenses Nexo AG may raise in response to this conciliation filing. This annex preemptively addresses legal and factual defenses that Nexo AG may raise in response to my conciliation request under ZPO Articles 202–204. It is grounded in firsthand user experience, supported by documentary evidence, and informed by Swiss legal consultation. The goal is procedural clarity and to streamline potential areas of dispute.
Anticipated Defense 1: “User Accepted Margin Risk Terms”
Claimed Position:
Nexo may argue that margin risk was disclosed in its general terms and conditions and that all users, including me, accepted those terms upon onboarding.
Rebuttal:
At no point during onboarding or platform use was the account characterized as a margin-based or leveraged product. There were no opt-in mechanisms, no risk-specific consent fields, and no alerts or liquidation thresholds visible in the interface. This violates FinSA Arts. 8–10, which mandate clear, comprehensible, and contextual disclosures of material risk, especially for retail clients. Based on personal experience managing portfolios through the 1987 crash, I categorically avoid margin products. The absence of conspicuous disclosure invalidates any purported consent.
Anticipated Defense 2: “Disclosures Were Provided via General Terms”
Claimed Position:
Nexo may assert that all risks and features were described in general platform documents or legal terms.
Rebuttal:
General platform terms cannot substitute for timely, contextual disclosures within the product interface, as required under FinSA and UCA. Under UCA Art. 3(1)(b)–(d), omitting material risks while emphasizing safety or bank-like features is considered a misleading commercial practice. Nexo’s “secure, regulated” branding contradicted the actual operational risk structure delivered.
Anticipated Defense 3: “Client Was Sophisticated and Knew the Risks”
Claimed Position:
Nexo may argue that as a former executive in fintech and security, I was sophisticated and capable of understanding the platform structure.
Rebuttal:
Platform duty under FinSA Art. 10 (appropriateness) and Art. 12 (suitability) is not waived by a user’s past professional title. I had no margin trading experience, was not a speculative investor, and relied on Nexo’s marketing to identify it as a passive, interest-yielding storage platform. Legal protection in Swiss financial markets applies equally to all consumers, irrespective of background.
Anticipated Defense 4: “Nexo Is a Cayman Entity, Outside Swiss Jurisdiction”
Claimed Position:
Nexo may claim its legal entity and terms are governed under Cayman law, limiting Swiss enforcement.
Rebuttal:
Nexo AG, a Zug-based company, conducted platform branding, user communications, and payment confirmations from Swiss jurisdiction. Swiss courts maintain jurisdiction over such entities under ZPO Art. 3 and international private law, especially where consumer reliance is rooted in Swiss legal branding. Nexo cannot benefit from Swiss incorporation while disclaiming regulatory responsibilities under Swiss law.
Statement of Intent
This annex is submitted in support of a good-faith civil conciliation request under ZPO Art. 202–204. The claimant asserts that the conduct described herein warrants regulatory attention and damages due to misrepresentation and unsupervised financial intermediation. No proprietary platform information is disclosed, and all references are based on claimant usage, public materials, and industry guidelines.
Disclaimer
This document is submitted in good faith, based solely on the claimant’s personal experience and publicly available facts. No confidential or privileged information has been disclosed. All statements reflect the claimant’s beliefs or recollections unless otherwise indicated. Names of third parties are anonymized or redacted where not publicly implicated. The purpose of this release is transparency, accountability, and resolution not defamation or harm.
Legal Context Note
This annex was authored solely by the claimant as part of a lawful civil conciliation filing under Articles 202–204 of the Swiss Civil Procedure Code (ZPO). It does not contain any confidential statements made during the conciliation hearing, nor does it disclose settlement terms or other protected materials governed by ZPO Art. 205.
The annex is based exclusively on:
- Personal experience,
- Publicly available information, or
- Facts the claimant is legally entitled to share.
Its purpose is to document the legal and factual basis for the claimant’s grievance, promote transparency, and serve the public interest where legal oversight may be insufficient.
The annex adheres to Swiss privacy and defamation standards under ZGB Art. 28, the Data Protection Act (DSG), and applicable banking/professional secrecy provisions (BankG, StGB Art. 321).
It is not an official court document, and no information disclosed herein was obtained through the hearing process.