Welcome to CapLaw

CapLaw is the first electronic newsletter providing up-to-date information on legal and regulatory developments, concise articles and reports on deals and events with particular focus on Swiss capital markets. CapLaw is addressed to all Swiss and international lawyers, in-house counsels financial institutions and corporates as well as those who are interested in the Swiss capital markets.

The Editors
René Bösch, Homburger AG
Thomas Reutter, Bär & Karrer AG
Patrick Schleiffer, Lenz & Staehelin
Peter Sester, University of St. Gallen
Philippe A. Weber, Niederer Kraft & Frey AG
Thomas Werlen, Quinn Emanuel Urquhart & Sullivan, LLP

The Extraterritorial Reach of the New EU Share Trading Obligation

The new Market in Financial Instruments Regulation (MiFIR) will introduce a share trading obligation which requires EU investment firms to trade shares on an EU trading venue, an EU systemic internaliser or on an equivalent third country exchange only. Should the Swiss legal framework not be considered equivalent to the EU regulation as of the date of the launch of MiFID II/MiFIR (3 January 2018), EU investment firms would be required to trade dual-listed shares outside of Switzerland, even if the deepest pool of liquidity is in Switzerland. This article briefly describes the EU equivalence regimes in general, the requirements and effects of the relevant equivalence provision with regard to the share trading obligation, as well as its effects on Swiss trading venues.

By Marco Toni / Lea Hungerbühler (Reference: CapLaw-2017-15)

Current market practice of subsequent prospectus review for bonds and derivatives can be maintained under article 53 FinSA

Article 53(1) FinSA introduces a pre-review of prospectuses by a reviewing body, while article 53(2) FinSA allows the Federal Council to provide for exemptions. The Federal Council should continue to allow subsequent reviews substantially in the same way as the regulatory board allows provisional trading. The confirmation pursuant to article 53(2) FinSA is addressed to the reviewing body and confirms formal completeness against the prospectus content lists. Only administrative consequences imposed by FINMA are attached to an incorrect confirmation.

By Matthias Courvoisier (Reference: CapLaw-2017-16)

New Regulatory Guidelines on Corporate Governance for Banks, Securities Dealers and Financial Groups/Conglomerates (FINMA Circular 2017/1)

On 1 November 2016, FINMA published its new circular 2017/1 on “Corporate governance – banks” streamlining the regulatory framework on corporate governance for banks, securities dealers, financial groups and conglomerates by defining partially revised minimum requirements and underlying principles. The new circular consolidates and replaces three former FINMA circulars and addresses the experiences made in the financial crisis as well as the revised international standards. The most significant changes pertain to i) FINMA’s commitment to a more principle based approach and consistent application of the principle of proportionality, ii) the introduction of provisions for the audit and risk committee of the governing body as well as iii) the possibility to delegate the internal audit function to another unregulated group company, provided such group company fulfills certain minimum requirements regarding capabilities and resources. The new circular will enter into force on 1 July 2017.

By Peter Ch. Hsu / Sandro Fehlmann (Reference: CapLaw-2017-17)

Stay Recognition Clauses in Financial Contracts

On 16 March 2017, the Swiss Financial Market Supervisory Authority FINMA (FINMA) released final rules on stay recognition clauses in financial contracts that are governed by non-Swiss law and/or subject to the jurisdiction of non-Swiss courts. The new rules are set out in an amendment to the Ordinance of FINMA on the Insolvency of Banks and Securities Dealers (BIO-FINMA) and aim to implement and further specify the scope of the obligation for banks to include stay recognition clauses in financial contracts as provided for in article 12(2bis) of the Ordinance on Banks and Savings Institutions (FBO). The final rules took effect on 1 April 2017, with a 12 months implementation period for contracts with banks and securities dealers and an 18 months implementation period for contracts with all other counterparties.

By Stefan Kramer / Andreas Josuran (Reference: CapLaw-2017-18)

Launch of New Mortgage Fund

Credit Suisse launched a new mortgage fund “Swiss Mortgage Fund I” (the Fund) which is authorised by the Swiss Financial Market Supervisory Authority FINMA and managed by independent asset manager Tavis Capital AG. Credit Suisse (Schweiz) AG will periodically offer mortgage loans which match a set of pre-defined criteria to the Fund. Tavis then selects the mortgages in which the Fund will invest according to the Fund’s investment strategy. The innovative structure involving a combination of sub-participation and assignment of the so selected mortgage loans to the Fund allows Credit Suisse (Schweiz) AG to transfer the risks and returns of the mortgages, thereby relieving its balance sheet and allowing for more flexibility in respect of the management of its capital base.

Acquisition of Opel and Vauxhall businesses by PSA

Groupe PSA (PSA) and General Motors Co. (GM) announced an agreement under which PSA will acquire GM’s Opel and Vauxhall businesses in a transaction valuing at EUR 1.3 bn. Furthermore, PSA together with BNP Paribas will acquire GM Financial’s European operations valuing these activities at EUR 900m through a newly formed 50%/50% joint venture. Upon the closing of this transaction, PSA will become the second-largest automotive company in Europe, with a market share of 17%. Closing is currently expected to take place prior to the end of 2017.

Merger of private equity businesses of Unigestion and Akina

Unigestion and Akina have announced their decision to merge their private equity businesses to create a leading specialist in global small and mid-market private equity. With USD 6 billion in assets under management and 54 dedicated professionals located in Geneva, Zurich, London, New York and Singapore, the combined business will trade under the Unigestion name. Completion of the transaction is subject to the customary regulatory approvals.

14. Zürcher Aktienrechtstagung: Das neue Schweizer Aktienrecht kommt

Friday, 7 April 2017, Park Hyatt Zürich, Beethoven-Strasse 21, Zurich


Aktuelles zum Kollektivanlagenrecht IV

Thursday, 18 May 2017, Kongresshaus Zürich, Gotthardstrasse 5, Zurich


14. Tagung zu Entwicklungen im Finanzmarktrecht

Tuesday, 30 May 2017, Lake Side Casino Zürichhorn, Zurich