This article analyses the Swiss Federal Supreme Court’s recent case law on the requirements for a valid retrocession waiver clause in execution-only relationships and discusses FINMA’s draft circular on rules of conduct under FinSA/FinSO in this context.

 By Stephanie Walter (Reference: CapLaw-2024-62)

The recently published draft amendment to the Financial Market Infrastructure Act (D-FinMIA) contains a number of changes and, it is fair to say, some surprises at the level of financial market infrastructures and their users. 

When the Financial Market Infrastructure Act (FinMIA) was passed in 2014 it was already determined that the Federal Department of Finance (FDF) would evaluate the effects of the FinMIA 5 years after it came into force. While the corresponding FDF Evaluation Report published in fall 2022 indicated that some changes will be proposed to increase the competitiveness of the Swiss financial center by considering technological developments and international standards, the recently published draft amendments are fairly comprehensive. The consultation period runs until 11 October 2024.

 By Andrea Rüttimann (Reference: CapLaw-2024-63)

On 1 March 2024, the revised Collective Investment Schemes Act (CISA) and its implementing ordinance (CISO) came into effect. The key element of the revised CISA is to allow under Swiss law the long awaited possibility to launch, under certain conditions, collective investment schemes for qualified investors in the form of a so-called Limited Qualified Investor Fund (L-QIF). This, by definition, implies that they are operated without approval, authorisation and product supervision of the Swiss Financial Market Supervisory Authority (FINMA).

By François Rayroux (Reference: CapLaw-2024-37)

On 1 February 2024, a new criminal offence was introduced in Switzerland’s public takeover law. According to the new criminal offence, anyone who willfully provides untrue or incomplete information in the offering prospectus or the announcement of a public takeover offer can be penalized with a fine of up to CHF 500,000. If the offender acted through negligence, a reduced fine of up to CHF 150,000 can be imposed. This article describes the prerequisites for imposing a fine for such a breach of duty by the offeror.

By Pascal Hodel (Reference: CapLaw-2024-20)

The Swiss financial market, renowned for its robust regulatory environment and attractiveness to global investors, presents unique challenges and opportunities for foreign collective investment schemes. This article seeks to demystify the legal intricacies involved in advertising these schemes to Swiss investors, focusing particularly on the stringent requirements set forth by the Swiss Financial Market Supervisory Authority FINMA.

By Jürg Frick / Benjamin Leisinger (Reference: CapLaw-2024-21)

Changes in the Swiss financial market over the last two years continue to have a profound impact on regulatory initiatives and legislation in Switzerland. Most notably, the Swiss government used its emergency powers to force a takeover of Credit Suisse by UBS in March 2023 after Credit Suisse suffered significant deposit outflows and a loss of market confidence. This extraordinary intervention spurred questions on the effectiveness of the Too-big-to-fail regime and triggered calls for measures to reestablish confidence in the Swiss financial market. Separately, events including the abolishment of negative interest rates, the substitution of the Swiss Franc LIBOR by SARON, scandals in the international crypto markets and an increased international focus on sustainable finance also continue to affect the regulatory agenda.

By René Bösch / Thomas Werlen (Reference: CapLaw-2024-03)

On 1 February 2024 SIX’s amended directive on the disclosure of management transactions (DMT) and related changes to the SIX Listing Rules entered into force. Besides a number of procedural and formal changes, the amendments to the DMT focus primarily on related party transactions and introduced a new obligation to report certain follow-on transactions made by related parties. In connection with these amendments to the DMT, SIX Exchange Regulation also published a revised version of its guidelines on management transaction disclosures, setting out its practice and expectations as regards the disclosure of management transactions. SIX listed issuers were only given a short period of time to update their internal regulations and to provide a refresher training to their board members and senior management.

By Daniel Raun / Patrick Schärli (Reference: CapLaw-2024-04)

The long-held myth of crypto markets benefitting from a “legal vacuum” has recently been dismantled once and for all. Whereas the EU has adopted a regulation for markets in crypto-assets (MiCAR), international standard-setters such as the FATF, the FSB, BCBS and IOSCO have issued a series of far-reaching recommendations that are now to be implemented worldwide. Given these significant regulatory headwinds, the crypto industry will inevitably have to go through a process of maturation and consolidation.

By Franca Contratto (Reference: CapLaw-2023-38)

Tokens such as cryptocurrencies have caused turmoil in the financial market. Regulators are trying to catch up on the latest developments and adapt 20th century legislation to match up with 21st century technology. In this context, the United States Securities and Exchange Commission (“SEC“) has taken enforcement action against two cryptocurrency exchange platforms, Binance and Coinbase, in an attempt to clarify U.S. law applicable to tokens. The Swiss regulators have taken a more pragmatic approach. This article sets out the current situation in the U.S. and then turns to the legal regime in Switzerland.

By Thomas Werlen / Simon Weber (Reference: CapLaw-2023-39)

By Benjamin Leisinger / Daniel Hulmann (Reference: CapLaw-2023-40)