Category Archives: Regulatory
Untrue or Incomplete Information in the Offering Prospectus – Introduction of New Criminal Offence
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)
Understanding the Landscape of Advertising Foreign Collective Investment Schemes to Swiss Investors
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)
The Regulatory Agenda for 2024 in Switzerland
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)
Management Transactions: Revised SIX Rules Enterinto Effect
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)
Crypto Markets: Regulators Worldwide Are Sharpening Their Knives
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)
Switzerland’s Quest for a Safe Haven for Crypto Products
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)
Federal Council Submits Draft Legislation on the Introduction of a Public Liquidity Backstop (PLB) for Systemically Important Banks to the Swiss Parliament
By Benjamin Leisinger / Daniel Hulmann (Reference: CapLaw-2023-40)
FINMA’s enforcement tools to uphold supervisory law: Current toolkit and proposed additions
During the current debate on the supervision of financial institutions, FINMA’s enforcement instruments have repeatedly been accused of being ineffective, especially when compared to other foreign financial market supervision authorities’ tools. While FINMA has long been opposed to additional enforcement instruments, this has now changed and FINMA has recently proposed three additional tools to strengthen the authority’s enforcement activities.
The following article discusses the enforcement instruments currently at FINMA’s disposal and the possible additional instruments proposed by FINMA, especially taking into account the supervisory toolkit of foreign enforcement authorities.
By Lukas Roesler / Stephanie Walter (Reference: CapLaw-2023-25)
Highlights from FINMA’s Annual Report 2022
As every year, the Swiss Financial Market Supervisory Authority FINMA has released its annual report, which summarizes the authority’s regulatory and supervisory activity during the past calendar year. This survey highlights a number of points of particular interest from a capital markets law perspective.
By Roland Truffer (Reference: CapLaw-2023-26)
Non-Financial Reporting
With the entry into force of the reporting obligations on non-financial matters, Swiss listed and/or FINMA-regulated companies will become subject to a comprehensive reporting and disclosure framework on environmental and social matters. The rules on non-financial reporting include in particular detailed disclosure requirements on climate-related matters, all in line with international standards and recommendations. The new set of Swiss disclosure and reporting rules follows trends and similar legislative initiatives in other jurisdictions, most notably in Europe. For this reason, it is important for Swiss companies to understand how ESG-related reporting and disclosure rules in several jurisdictions may be of relevance and where the relevant rules provide for possibilities of substituted compliance in order to avoid duplication of work.
By Patrick Schärli (Reference: CapLaw-2023-13)