Switzerland targets adjustments of the existing legal and regulatory framework of distributed ledger technology (DLT). The Federal Council initiated consultation on proposed amendments to, inter alia, civil law (including securities law), insolvency law, financial market law, and anti-money laundering regulation on 22 March 2019. This article summarizes the key points of the suggested adjustments and analyses their potential impact on market participants. The content of the rules may still be subject to changes in the ongoing legislative process. 

By Luca Bianchi / Fabio Andreotti (Reference: CapLaw-2019-15)

On July 1, 2015, new rules regarding reporting of beneficial owners of unlisted companies entered into force in Switzerland (for general remarks on the rules see CapLaw-2015-55). Even four years after their implementation, there are still a number of open questions in practice as regards the application of these rules, both from the perspective of the shareholders (subject to the obligation to report their beneficial owners(s)) and the companies (subject to the obligation to maintain a register of beneficial owners). One reason for these uncertainties is that the relevant provisions are incomplete and in many aspects leave room for interpretation. To date there is no case law that could provide guidance. A currently ongoing revision of the disclosure rules could bring some clarity.

By Alexander Wille / Lukas Held (Reference: CapLaw-2019-16)

In Switzerland, plaintiffs are forced to litigate their claims in court individually, even if they are part of a group that is affected by the same underlying damaging event. In the context of the ongoing partial revision of the Civil Procedure Code the Swiss Federal Council is seeking to facilitate actions for damages for large groups. To this end it is proposing amendments to the existing mechanism of a group action through an organization and the introduction of a novel group settlement method.

By Thomas Werlen / Remo Decurtins (Reference: CapLaw-2018-44)

On 18 July 2018, FINMA published its revised Anti-Money Laundering Ordinance (the AMLO-FINMA). The revised AMLO-FINMA is noteworthy not so much for what it contains, but rather for what it does not contain.

By Katrin Ivell (Reference: CapLaw-2018-45)

In January 2018, two next sets of European rules affecting debt capital markets offerings into the European Economic Area (EEA) have come into effect: the PRIIPs Regulation (EU 1286/2014) on key information documents for packaged retail and insurance-based investment products (PRIIPs) and MiFID II (Directive 2014/65/EU on markets in financial instruments). The PRIIPs Regulation requires that a key information document be prepared and published for all offerings to retail investors that are in scope of the regulation. Its applicability to different types of bonds has been subject to much debate. This article presents an overview of the new regulation and consequences for debt capital markets transactions that include offers to European retail investors. In addition, the article discusses the implications of the new MiFID II rules, which have imposed new product governance obligations on MiFID firms when they manufacture and/or distribute financial instruments. Both sets of rules have resulted in new selling restrictions and contractual provisions being introduced in bond documentation.

By Dorothee Fischer-Appelt (Reference: CapLaw-2018-46)

For many companies listed on the SIX Swiss Exchange Ltd (SIX), the use of alternative performance measures (APMs) has become a regular tool for communicating the business and financial performance of a company to investors. In light of the widespread use of APMs, their diverse application and the increasing risk of investors being misled, SIX Swiss Exchange Regulation Ltd has issued a new Directive on the Use of Alternative Performance Measures (the Directive). This article provides a brief introduction to the Directive and its application to issuers listed on SIX.

By Deirdre Ní Annracháin (Reference: CapLaw-2018-47)

While the entry into force of the Financial Market Infrastructure Act (FMIA) on 1 January 2016 has brought a number of substantial changes to the Swiss disclosure rules, in particular with regard to the reporting of discretionary voting power related to equity securities, the takeover provisions contained therein have largely remained unchanged. This article examines the exemptions from (1) the disclosure duties related to significant shareholdings and (2) the duty to make an offer granted by the financial market authorities to the banks that provide financing facilities.

By Julia Tolstova / Olivia Biehal / Aurèle Bertrand (Reference: CapLaw-2018-29)

The reliable and easy transfer of assets on a blockchain is a key prerequisite for the economic exploitation and development of new technologies. Asset transfers currently occur through the use and transfer of tokens. If tokens contain a claim against the issuer (e.g. the right to use certain services), then claims under applicable Swiss law must be transferred by way of assignment in accordance with article 164 et seq. CO, provided the tokens are not securitized or issued as book-entry securities.

This is the English translation of the article published by the authors in the IT Jusletter on 24 May 2018 which has been derived from the Position Paper on the legal classification of ICOs published by the Blockchain Taskforce of the Swiss Federal Council in April 2018.

By Rolf H. Weber / Salvatore Iacangelo (Reference: CapLaw-2018-30)