Author Archives: François Rayroux

Funds Distribution under FinSA/FinIA: A change of paradigm

The introduction of the concept of an “offer” according to Art. 3 let. g FinSA as a replacement of the current notion of a “distribution” pursuant to Art. 3 CISA will lead to a number of consequences for the Swiss financial industry as well as for foreign financial services providers acting on a cross-border basis into Switzerland. The new concept is more flexible as the current notion of a “distribution”, but also raises a number of delicate questions which need to be clarified. The object of this article is to provide a first analysis of the salient features and challenges of the current and future regimes and their practical consequences with a specific focus on the placement of collective investment schemes in Switzerland.

By Diana Imbach / François Rayroux (Reference: CapLaw-2018-64)

New Ordinance of FINMA on the Insolvency of Banks: A Critical Assessment

Based on articles 28 (2) and 34 (3) of the Banking Act, as amended (BA), the Swiss Financial Market Supervisory Authority (FINMA) has opened on 16 January 2012 a consultation, which has come to an end on 2 March 2012, on the complete revision of the FINMA Bank Bankruptcy Ordinance (BBO-FINMA). More precisely, the BBO-FINMA is intended to be repealed and replaced by the new Ordinance of the Federal Authority on the supervision of financial markets on the Insolvency of Banks and Securities Dealers (Bank Insolvency Ordinance-FINMA, BIO-FINMA or the Ordinance). The current draft of the BIO-FINMA provides for some innovations which are worth noting and may even have an impact on the competitiveness of the Swiss financial place as regards derivatives, securities lending and repo transactions.