Category Archives: FinSA (FIDLEG)

The New Swiss Prospectus Regime

In June 2018 the Swiss Federal Parliament passed the Financial Services Act and the Financial Institutions Act, and on 6 November 2019 the Swiss Federal Council published the implementing ordinances thereto. The acts and the related ordinances will become effective on 1 January 2020. Modeled largely after the EU prospectus framework, the new prospectus regime marks a veritable paradigm change to Swiss capital market regulation, introducing a number of novelties for issuers of securities in the Swiss market, such as the requirement for an ex ante approval for most financial instruments, coupled with some important long-awaited explicit exemptions from such requirement and the requirement for a prospectus for secondary public offerings.

By Christian Rehm / René Bösch (Reference: CapLaw-2019-51)

Countdown at the Point of Sale – Final Version of Financial Services Ordinance Published

On the way to the new Financial Services Act (FinSA), the final version of the Financial Services Ordinance (FinSO), which was published on 6 November 2019, started the final countdown towards the implementation of these new regulations in the light of their entry into force on 1 January 2020. As of that date, financial services providers must, in principle, comply with the new regulations (including the key adjustments made in the final version of the FinSO). However, various transitory provisions provide for (temporary) relief from the apparent time pressure.

By Sandro Abegglen / Luca Bianchi (Reference: CapLaw-2019-52)

The Basic Information Sheet – No surprises in the final implementing ordinances, but some relevant amendments

On 1 January 2020 the new Swiss Financial Services Act (FinSA) and its implementing ordinance, the Financial Services Ordinance (FinSO), will come into effect. The Swiss Federal Council announced its decision on the entering into force of the new financial services regulation and the final text of the implementing ordinances on 6 November 2019. There are no big surprises in the final ordinances regarding the newly introduced basic information sheet (Basisinformationsblatt). However, a number of amendments were made based on responses in the consultation process of the draft ordinances.

By Daniel Haeberli (Reference: CapLaw-2019-53)

Update: The Enforcement of Clients’ Rights in the Financial Services Act

The Financial Services Act (FinSA) as it will enter into force on 1 January 2020 contains two elements of an initially broad set of proposals meant to strengthen the enforcement of clients’ rights. First, it specifies the scope of records to be kept regarding a service provider’s relationship with a client and gives the client an unambiguous legal basis to obtain a copy of such records on request. Second, it will require all providers of financial services to be affiliated with an ombuds institution. Parliament ultimately opposed the introduction of new procedural mechanisms such as collective action instruments and changes to the ‘loser pays’ rule, referring to ongoing efforts towards a broader reform of the Civil Procedure Code.

By Thomas Werlen / Jonas Hertner (Reference: CapLaw-2019-54)

The New Registration Duty for Client Advisers – An Update on the Final FinSO

On 6 November 2019, the Federal Council decided that the Financial Services Act (FinSA) would enter into force on 1 January 2020. Subject to a transition regime, the FinSA will introduce a new registration duty for client advisers of Swiss financial service providers not subject to prudential regulation and client advisers of foreign financial institutions. Today, no such registration requirement exists with the exception of similar obligations for untied insurance intermediaries, who have to register with the public register kept by the Swiss Financial Market Supervisory Authority (FINMA).

Under the new regime, client advisers will be required to register in a register maintained by one or more registration bodies licensed by FINMA. To register, they must evidence sufficient knowledge of the rules of conduct under the FinSA and the necessary expertise to perform their duties, adequate financial means as well as affiliate themselves with an ombudsman’s office. Clients may check the register at any time to verify that their adviser has the required qualifications. The registration will, however, not imply any prudential or ongoing supervision by FINMA. If a client adviser no longer meets the registration requirements, the adviser will be deleted from the register by the competent registration body and may, consequently, no longer engage in activities as a client adviser.

By Martin Peyer (Reference: CapLaw-2019-55)

Funds Distribution under the new financial market law architecture

On 1 January 2020, the new Financial Services Act (FinSA) and the Financial Institutions Act (FinIA) will enter into force. This entails various changes of existing regulatory concepts in the context of distribution and management of collective investment schemes. From today’s CISA perspective, the term “distribution” under Art. 3 CISA plays a fundamental role. Under the new regulatory regime, an exclusive focus on the new concept of the offer falls short in explaining the rules governing the distribution of funds. Particularly with regard to the behavior at the point of sale, the concept of financial services is of primary importance. 

By Diana Imbach Haumüller / François Rayroux (Reference: CapLaw-2019-56)

Note from the Editors

The new Swiss Financial Services Act (FinSA) and Financial Institutions Act (FinIA) were enacted by the Swiss Parliament in June 2018, and are currently expected to enter into effect on 1 January 2020. While the FinSA introduces uniform prospectus rules generally applicable to all offerings of securities in Switzerland and comprehensive rules of conduct for providers rendering financial services in Switzerland, the FinIA introduces the prudential supervision of all financial services providers operating a portfolio or asset management business in Switzerland and uniform licensing requirements for financial intermediaries other than banks and insurance companies. With drafts of the implementing ordinances to the FinSA and FinIA having just been published, we deem it the right time to provide you with an update on this new legislation and a first assessment of the draft implementing provisions.

The editors.

The New Swiss Prospectus Regime

In June 2018 the Swiss Federal Parliament passed the Financial Services Act and the Financial Institutions Act, and on 23 October 2018 the Swiss Federal Council presented the ordinances implementing these acts for public consultation until early February 2019. It is expected that the acts and its ordinances will become effective on 1 January 2020. Modeled largely after the EU prospectus framework, the new prospectus regime marks a veritable paradigm change to Swiss capital market regulation, introducing a number of novelties for issuers of securities in the Swiss market, such as the requirement for an ex ante approval for most financial instruments, coupled with some important long-awaited explicit exemptions from such requirement and the requirement for a prospectus for secondary public offerings.

By Christian Rehm / René Bösch (Reference: CapLaw-2018-56)

The New Reviewing Body

The Financial Services Act establishes a new prospectus regime in Switzerland requiring the publication of a prospectus for public offerings of securities and the admission to trading on a trading venue. It introduces a new regulatory body – the reviewing body (Prüfstelle) – to be authorized by FINMA and responsible for review and approval of prospectuses. This article discusses the setup and operation of such reviewing body, the prospectus requirements and content as well as the review and approval of the prospectus.

By Sabir Sheikh / Peter Probst (Reference: CapLaw-2018-57)

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)