Author Archives: Patrick Schleiffer

New Rules for Organized Trading Facilities

While the concept of organized trading facilities has been introduced into Swiss law more than one and a half year ago, many of the rules applying to organized trading facilities will only be phased in by the beginning of 2018. Similarly, the Swiss regulator, the Swiss Financial Market Supervisory Authority FINMA, has only recently published regulatory guidance on the rules applicable to organized trading facilities. Such rules and regulatory guidance will start applying from January 1, 2018.

By Patrick Schleiffer / Patrick Schärli (Reference: CapLaw-2017-44)

Supervision of Portfolio Managers and Trustees – Update

Under current Swiss law, portfolio managers, unless they are acting as asset managers for collective investment schemes, and trustees are not subject to a comprehensive prudential supervision, a situation that will change under the proposed new Financial Institutions Act (“FinIA”). On 14 December 2016, this proposed new act took the first parliamentary hurdle when the Swiss Council of States deliberated and passed the new act. Compared to the draft bill published by the Swiss government in November 2015 (see CapLaw 2016-8), the draft FinIA now passed by the Swiss Council of States includes a number of significant changes to the new supervisory framework applicable to portfolio managers and trustees. Most notably, portfolio managers and trustees will have to apply for a license with the Swiss Financial Market Supervisory Authority (FINMA), while the ongoing (day-to-day) prudential supervision of these financial institutions will fall within the responsibility of new private supervisory organizations.

By Patrick Schleiffer / Patrick Schärli (Reference: CapLaw-2017-07)

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)

Supervision of Portfolio Managers and Trustees

Under current Swiss law, portfolio managers, which are not acting as asset managers for collective investment schemes, and trustees are not subject to a comprehensive prudential supervision. Portfolio managers and trustees are only required to register with a self-regulatory organization in order to comply with Swiss anti-money laundering laws. Other financial services providers, most notably banks, have criticized this lack of regulatory oversight. Furthermore, the current Swiss regulatory framework for portfolio managers is not in line with international regulatory standards, such as the EU/EEA’s Markets in Financial Instruments Directive (MiFID). This situation is about to significantly change under the proposed new Financial Institutions Act (FinIA). This new act will subject the approximately 2,300 portfolio managers to authorization requirements and comprehensive supervision by a FINMA-approved supervisory organization.

By Patrick Schleiffer / Patrick Schärli (Reference: CapLaw-2016-8)

Revised Cross-Border Marketing Regime for non-Swiss Funds to Qualified Investors in Switzerland applies as from 1 March 2015

The two year transitional period applicable to the rules for the marketing of non-Swiss funds to unregulated qualified investors in Switzerland under the amended Collective Investment Schemes Act (CISA) ended on 28 February 2015. As from 1 March 2015, a Swiss representative and a Swiss paying agent must be appointed and Swiss law governed distribution agreements between the Swiss representative and the entities distributing the relevant non-Swiss fund in Switzerland must be in place, prior to marketing such funds to unregulated qualified investors in Switzerland.

By Patrick Schleiffer/Michael Kremer (Reference: CapLaw-2015-17)