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
Franca Contratto, University of Lucerne
Thomas Reutter, Bär & Karrer AG
Patrick Schleiffer, Lenz & Staehelin
Philippe A. Weber, Niederer Kraft & Frey AG
Thomas Werlen, Quinn Emanuel Urquhart & Sullivan, LLP

New Rules on the Disclosure of Beneficial Owners and the Death Knell for Bearer Shares

On 21 June 2019, the Swiss Federal Assembly passed the Federal Act on the Implementation of the Recommendations of the Global Forum on Transparency and Exchange of Information for Tax Purposes (the Act) into law. The Act sounds the death knell of bearer shares for non-listed companies. It also introduces criminal law sanctions for breaches of the obligation to disclose beneficial ownership of shares and several corporate housekeeping duties regarding the share register and the register of beneficial owners. Finally, it provides for draconian sanctions for holders of bearer shares who would fail to comply with their disclosure duties and for companies who would fail to maintain the requisite corporate registries or issue bearer shares in breach of the new provisions. At the same time, the Act also introduces some clarifications around the disclosure of beneficial owners and several issues that were subject to controversy.

By Rashid Bahar (Reference: CapLaw-2019-39)

New Delegation Rules under FinSA/FinIA as well as CISA: Impact on supervised and non-supervised entities

The purpose of this article is to provide a first analysis of the key features and challenges, which will result from the shift from the current delegation rules under CISA to the new regulations on “delegation” pursuant to FinSA, FinIA and CISA. The new regulatory framework concerning the transfer of tasks to third parties covers a variety of factual and operational circumstances and set-ups. One of the main particularities of the new framework is that it is untested for the newly prudentially supervised entities under FinIA (i.e. trustees and asset managers) and that it will, at least in part, wherever financial services are provided, also impact non-supervised entities. The new rules may have consequences for both Swiss institutions delegating financial services and other tasks and international service providers with whom Swiss financial institutions will conclude delegation schemes.

By François Rayroux (Reference: CapLaw-2019-40)

New Limited Qualified Investor Fund (L-QIF) – Innovation and Deregulation as Growth Catalyst for the Fund and Asset Management Industry in Switzerland

The Federal Council aims to boost the attractiveness of Switzerland as a domicile for fund production with the proposed introduction of the Limited Qualified Investor Fund (L-QIF). The ongoing consultation period for the L-QIF was initiated on 26 June 2019 and will end on 17 October 2019. The L-QIF is an innovative financial product that may invest in all thinkable investments and will benefit from very flexible investment restrictions. To speed up time-to-market and reduce costs, the L-QIF will neither require a regulatory authorization or product approval nor will it be subject to ongoing supervision by the Swiss Financial Market Supervisory Authority FINMA. 

By Sandro Abegglen / Luca Bianchi (Reference: CapLaw-2019-41)

FINMA Grants Banking Licenses to New Swiss Crypto Banks, Introduces New Strict AML Rules regarding Payments on Blockchain

On 26 August 2019, the Swiss financial regulator FINMA granted full banking and securities dealer licenses to two new financial institutions focusing on services in the area of crypto currencies and other digital assets. At the same time, FINMA issued new guidance on its interpretation of Swiss anti-money laundering regulation in respect of digital token transfers. The practice adopted by FINMA is very strict, especially in the light of international standards, and will challenge regulated financial services providers, new and old alike, intending to offer services regarding digital assets.

By Daniel Flühmann / Rashid Bahar (Reference: CapLaw-2019-42)

Swiss Financial Market Supervisory Authority Publishes New Guidelines for “Stable Coins”

Against the backdrop of the growing number of projects for so-called “stable coins” since mid-2018, the Swiss Financial Market Supervisory Authority (FINMA) on 11 September 2019 published new guidelines explaining the regulatory qualification of tokens that are linked to underlying assets such as fiat currency, commodities or securities with the goal to minimise fluctuations in their market value. The new guidelines supplement FINMA’s ICO Guidelines of 16 February 2018, which continue to apply. While the stable coin guidelines are general in nature, their publication coincides with the recent announcement by the Swiss based Libra Association to launch a payment token that is backed by a basket of fiat currencies, a project that has attracted worldwide attention by governments and regulators.

By Martin Peyer / Gadi Winter (Reference: CapLaw-2019-43)

Swiss Debt Capital Markets: More Flexibility under New Swiss Withholding Tax Rules

A bond issued by a foreign resident issuer which is guaranteed by its Swiss resident parent company may be reclassified in a domestic issuance subject to 35 withholding tax if the proceeds raised under such bond are used in Switzerland. Under the rules which entered into force on 1 February 2017, it was possible to use the proceeds in Switzerland up to an amount equal to the equity of the foreign issuer. New rules which entered into force on 5 February 2019 added further flexibility with respect to the permissible use of proceeds in Switzerland.

By Stefan Oesterhelt (Reference: CapLaw-2019-44)

Legatics

One of the editing law firms of CapLaw has gained first experience in the Swiss legal market with the legal tech software Legatics which was deployed in a complex acquisition financing involving multiple investors and borrowers. Legatics is an intelligent deal platform that allows to automatically generate conditions precedent (CP) checklists mirroring the required CPs or other deliverables under loan documents, SPAs or underwriting agreements and permits parties involved in a deal to upload documents besides specific CP-line items and to leave comments and update status with respect to such line items.

Credit Suisse successfully launched its inaugural SARON-based Additional Tier 1 Bonds in the Swiss market and SOFR-linked Bail-in Bonds in the U.S. market

In September 2019, Credit Suisse issued its inaugural SARON-based Additional Tier 1 (AT1) Bonds in the Swiss market and SOFR-linked Bail-in Bonds in the U.S. market. These are the first benchmark deals of Credit Suisse Group AG using interest rates that are based on one of the new risk-free rates established as an alternative to LIBOR, and the AT1 issuance is the first public issuance in the Swiss market to reset over mid-swaps based on SARON. 

KBL European Private Bankers S.A. to acquire Bank am Bellevue AG

In August 2019, KBL European Private Bankers S.A. (KBL epb), a pan-European private banking group headquartered in Luxembourg and operating in 50 cities across Europe, announced that it has entered into an agreement to acquire Bank am Bellevue AG (Bank), the wealth management business of the independent Swiss financial boutique Bellevue Group AG listed on the SIX Swiss Exchange. The acquisition of the Bank – which currently employs 22 staff and manages some CHF 1.7 bn in assets – marks KBL epb’s return to Switzerland.

Completion of the Public Exchange Offer for Panalpina

In August 2019, the public exchange offer by DSV A/S, Hedehusene, Denmark, for the publicly held shares of Panalpina Welttransport (Holding) AG, listed on SIX Swiss Exchange and headquartered in Basel, Switzerland, was successfully completed. A total of 23’379’700 Panalpina shares were tendered into the offer, corresponding to 98.44% of all shares issued by Panalpina. DSV consummated the offer on 19 August 2019. The total value of the transaction is approximately USD 5.5 billion.