Author Archives: Luca Bianchi

Digital Assets – Proposed Amendments to the Legal and Regulatory Framework of Distributed Ledger Technology in Switzerland

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)

Point of Sale Regulation – Consultation Draft of Financial Services Ordinance: Key Points

The publication for consultation of the draft Financial Services Ordinance represents the last milestone on the road to the new financial services architecture in Switzerland. For all those who aim to optimize the details of the point of sale code of conduct, the consultation to the Draft-FinSO until 6 February 2019 is the last possibility to do so. Considering whether to provide comments to the Draft-FinSO is important because the ordinance specifies a number of key provisions of the FinSA on the point of sale duties. Hereinafter, is an overview of the most important proposed ordinance rules.

By Sandro Abegglen / Luca Bianchi (Reference: CapLaw-2018-58)

FinTech Regulation (2.0): An Overview on the Proposed Three Element Solution

More regulation and digitization are two important trends that are currently reshaping the financial industry in Switzerland. In this context, the Swiss Federal Council has proposed the creation of a specific new FinTech regulation that shall be particularly relevant for business models in the overlapping areas of these two topics and has mandated the Federal Department of Finance (FDF) to develop a consultation draft that further specifies the “Three Element Approach” of the Swiss Federal Council. On 1 February 2017, the FDF published its related Explanatory Report on the Amendment of the BA and BO (FinTech). This article contains a short overview of the key parameters of the proposed new Swiss FinTech regulation and a first view on the Explanatory Report.

By Luca Bianchi (Reference: CapLaw-2017-02)

Liberalization of the Point of Sale– Amendments to the FIDLEG Bill’s Point of Sale Duties Proposed by the Council of States

After having been discussed throughout 2016 in various sessions of the Economic Affairs and Taxation Committee of the Swiss Federal Council of States (WAK-S), on 14 December 2016 the new Federal Financial Services Act (Finanzdienstleistungsgesetz; FIDLEG) was finally resolved on by the Federal Council of States (SR). Compared to the bill of the Federal Council (the Swiss government), the SR resolved on a number of amendments that will, in certain areas, substantially liberalize the proposed regulatory regime to be complied with at the point of sale. Starting this year, the bill is now before the other chamber of Swiss parliament, the Swiss National Council (NR), and it will be interesting to see to what degree the NR will follow the SR’s approach. The enactment of the bill is still anticipated at the earliest in 2018. The present article focuses on important amendments to the FIDLEG bill as suggested by the SR.

By Sandro Abegglen / Luca Bianchi / Edi Bollinger (Reference: CapLaw-2017-03)

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)

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)

Regulation of the Point of Sale – An Update on the Rules of Conduct of Financial Services Providers under the proposed FIDLEG

On 4 November 2015 the Swiss Federal Council has published the Message (Botschaft) on the Financial Services Act (Finanzdienstleistungsgesetz, FIDLEG). In the industry, it has been expected with great excitement and interest, as it will have a major impact, inter alia, on how financial services and products may be offered and sold to clients. Also, the FIDLEG, together with the new Financial Institutions Act (Finanzinstitutsgesetz, FINIG), will define how equivalent the relevant Swiss regulation will be when compared with, in particular, EU regulation. This article aims to provide a short overview on the core content of the FIDLEG, namely, the conduct duties to be complied with at the point of sale.

By Sandro Abegglen / Luca Bianchi (Reference: CapLaw-2016-3)

The Launch of the Real Estate Investment Foundation

While Swiss investment foundations have been used quite often for indirect real estate investments of Swiss pension plans in the past, recently, more market participants have been using the real estate investment foundation as an attractive real estate offering for their eligible clients. In addition to the general regulatory and civil law framework that applies to all Swiss investment foundations, some specific requirements must be observed for the launch of real estate investment foundations. This article aims to provide a brief overview on the applicable general and specific requirements.

By Sandro Abegglen / Luca Bianchi / Thomas Hochstrasser (Reference: CapLaw-2015-41)

The Rise of Actively Managed Certificates

Actively Managed Certificates (AMCs) have become more and more popular in recent years. Unlike most other structured products, AMCs have special features which enable the active selection and adjustment of the components of their underlying strategy. The fast growth of the AMC market emphasizes the importance of the applicable regulatory and contractual framework. In addition to the general rules that apply to all structured products, AMCs are subject to specific regulatory and contractual requirements. This article provides some insights on these characteristics.

By Luca Bianchi (Reference: CapLaw-2015-19)

Proposed Regulatory Framework for Financial Products in Switzerland

Two new pillars of financial markets regulation are currently being elaborated in Switzerland. The proposed laws will have a strong impact on banks, securities dealers, issuers and distributors of financial products, fund management companies, external asset managers, individual client advisors, and trading venues with respect to the legal structuring, distribution, trading, and clearing and settlement of financial products. This article provides a brief overview on the expected key points of the new laws and sets out their potential effects on financial product providers in Switzerland.

By Luca Bianchi (Reference: CapLaw-2014-5)