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

EU Shareholder Rights Directive: Action required for Switzerland?

Efforts to amend the EU Shareholder Rights Directive have lost momentum. The most recent resolution of an EU institution has been passed more than a year ago by the EU parliament. The Brexit vote in the United Kingdom has cast further doubt on the directive’s future design. Nevertheless, efforts to improve the governance of European companies and to strengthen the rights of shareholders will continue and the most recent proposal to amend the directive is likely still indicative of the future form and shape of corporate governance in the EU. Third countries like Switzerland should closely monitor the EU’s next steps on the directive, analyze any gaps and decide whether such gaps should be closed.

By Thomas U. Reutter (Reference: CapLaw-2016-43)

Bail-in Recognition Clause

This paper intents to outline the purpose and scope of article 55 of the European Bank Resolution and Recovery Directive, to present, as an example, the Bail-In Recognition Clause suggested by the Loan Market Association, and to discuss the legal nature of such a clause in a Swiss law governed agreement or document.

By Rashid Bahar (Bär & Karrer), Jürg Frick (Homburger), Theodor Härtsch (Walder Wyss), Marco Häusermann (Niederer Kraft & Frey), Patrick Hünerwadel (Lenz & Staehelin), Stefan Kramer (Homburger), Patrick Schleiffer (Lenz & Staehelin), Bertrand Schott (Niederer Kraft & Frey), Roland Truffer (Bär & Karrer) and Lukas Wyss (Walder Wyss (Reference: CapLaw-2016-44)

Revisited Notification Duty for Voting Rights Delegated on a Discretionary Basis

Practical problems arising from the present notification duty for voting rights delegated on a discretionary basis caused FINMA to consult on a revision of this rule. If implemented, those persons who actually decide on how delegated voting rights are exercised will be subject to the notification duty and no longer the persons controlling either directly or indirectly a relevant legal entity to which voting rights were so delegated on a discretionary basis.

By Benjamin Leisinger (Reference: CapLaw-2016-45)

FINMA Revisits Corporate Governance Guidelines for Banks

On 1 November 2016, the Swiss Financial Market Supervisory Authority FINMA (FINMA) announced its publication of a new circular relating to the supervisory requirements for banks, specifically with regards to corporate governance, internal control systems and risk management. At the same time, FINMA published amendments to existing circulars in relation to remuneration schemes and operational risks for institutions. These combined new and modified requirements incorporate the latest international corporate governance standards as well as post-financial crisis risk management conclusions.

By Philippe Weber / Christina Del Vecchio (Reference: CapLaw-2016-46)

A (Legal) Perspective on Blockchain

Before the background of the growing importance of financial technologies (FinTech), blockchain technology is gaining more and more of the public spotlight. Given that the existing legal framework has been designed for the traditional financial services industry rather than for technology-based business models, both regulators and legislators are facing the challenge of potentially adapting the existing regulation to the new needs of blockchain providers. In this context, a number of related regulatory and legal issues may arise; they are summarized in a nutshell in the present article.

By Luca Bianchi / Edi Bollinger (Reference: CapLaw-2016-47)

30. Forum Financial Market Regulation – Common Ownership, Competition, and Top Management Incentives

FinSA and FinIA (FIDLEG und FINIG)

Zukunft Finanzplatz Schweiz: Wie wird die Schweiz zum Asset Management Platz?

Friday, 13 January 2017, Weiterbildungszentrum Holzweid (WBZ-HSG), St. Gallen

The Regulation of FinTech (Startups)

Financial technologies (FinTech) are in the process of becoming the next chapter of Swiss financial market regulation. The rapid growth of the Swiss FinTech ecosystem, the public spotlight, and the changing perception on the importance and the future prospects of innovative business models in the financial industry have triggered a number of interesting regulatory developments. Currently, the center of the attention lies on FinTech startups. Some startups may have the potential to become serious competitors for traditional financial services providers. This article aims to set out the current state and the ongoing progress concerning FinTech related regulatory aspects.

By Luca Bianchi (Reference: CapLaw-2016-31)

ESMA Issues Positive Advice on the Extension of the AIFMD Marketing Passport to Swiss AIFM and AIF

On July 19, 2016, the European Securities and Markets Authority (“ESMA”) published its revised advice to the European Parliament, the European Council, and the European Commission on the extension of the AIFMD marketing and management passport (“AIFMD Passport”) to certain non-EU alternative investment fund managers (“AIFM”) and alternative investment funds (“AIF”). With respect to Switzerland, ESMA confirmed its earlier positive advice and concluded that that there are no significant obstacles impeding the potential application of the AIFMD Passport to Switzerland. While this positive advice is an important step towards passporting for non-EU AIFM and AIF, it is now up to the European institutions (Parliament, Council, and Commission) to decide, based on ESMA’s advice, whether or not the AIFMD Passport will be extended to third-countries such as Switzerland.

By Patrick Schärli (Reference: CapLaw-2016-32)