Category Archives: Regulatory

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)

The Financial Stability Board published its Guiding Principles on iTLAC

On 6 July 2017, the Financial Stability Board published its guiding principles on the loss-absorbing resources to be committed to subsidiaries or sub-groups that are located in host jurisdictions and deemed material for the resolution of a G-SIB as a whole (iTLAC). The guiding principles support the implementation of the iTLAC requirement in each host jurisdiction and provide guidance on the size and composition of the iTLAC requirement, cooperation and coordination between home and host authorities and the trigger mechanism for iTLAC.

By René Bösch / Benjamin Leisinger / Lee Saladino (Reference: CapLaw-2017-45)

New Regulatory Guidelines on Operational Risks and Remuneration Schemes for Banks, Securities Dealers and Financial Groups/Conglomerates

On 1 November 2016, FINMA published the revised circulars 2008/21 on “Operational risks – banks” and 2010/1 on “Remuneration schemes” which both have been revised in the context of the new FINMA circular 2017/1 “Corporate governance – banks”. The most significant changes pertain to i) the adoption of minimum requirements for the regulation of IT and cyber risks in the revised circular 2008/21 as well as ii) a narrowed scope of application and the prohibition of hedge transactions in the revised circular 2010/1. Both revised circulars will enter into force on 1 July 2017.

By Peter Ch. Hsu / Sandro Fehlmann (Reference: CapLaw-2017-26)

PRIIPs: Potential Impact on Plain Vanilla Bond Market

Most Swiss financial service providers have been aware of, and have been preparing for, the effect the new EU regulation on key information documents for packaged retail and insurance-based investment products or “PRIIPs” will have on the offering of structured products and other complex financial products. However, recent attention in connection with the medium term note program update season in Europe has been paid to potential effects that the regulation may have on the offering of plain vanilla bonds and the corporate bond market generally. This article discusses these potential effects, including those that may be of particular importance to the Swiss financial market.

By Lee Saladino / Andreas Josuran (Reference: CapLaw-2017-27)

SIX Swiss Exchange adapts new Regulations regarding Sustainability Reporting and further Disclosure Obligations

In response to the growing trend of sustainability reporting as an additional component of annual reporting, the Regulatory Board of the SIX Swiss Exchange has decided to issue new regulations regarding sustainability reporting. In addition, new disclosure rules have been adapted for publicly disclosed buyback programmes, redemption of own units by real estate funds and net asset value disclosure by collective investment schemes. The changes will enter into force on 1 July 2017.

By Adam El-Hakim (Reference: CapLaw-2017-28)

New Regulatory Guidelines on Corporate Governance for Banks, Securities Dealers and Financial Groups/Conglomerates (FINMA Circular 2017/1)

On 1 November 2016, FINMA published its new circular 2017/1 on “Corporate governance – banks” streamlining the regulatory framework on corporate governance for banks, securities dealers, financial groups and conglomerates by defining partially revised minimum requirements and underlying principles. The new circular consolidates and replaces three former FINMA circulars and addresses the experiences made in the financial crisis as well as the revised international standards. The most significant changes pertain to i) FINMA’s commitment to a more principle based approach and consistent application of the principle of proportionality, ii) the introduction of provisions for the audit and risk committee of the governing body as well as iii) the possibility to delegate the internal audit function to another unregulated group company, provided such group company fulfills certain minimum requirements regarding capabilities and resources. The new circular will enter into force on 1 July 2017.

By Peter Ch. Hsu / Sandro Fehlmann (Reference: CapLaw-2017-17)

Stay Recognition Clauses in Financial Contracts

On 16 March 2017, the Swiss Financial Market Supervisory Authority FINMA (FINMA) released final rules on stay recognition clauses in financial contracts that are governed by non-Swiss law and/or subject to the jurisdiction of non-Swiss courts. The new rules are set out in an amendment to the Ordinance of FINMA on the Insolvency of Banks and Securities Dealers (BIO-FINMA) and aim to implement and further specify the scope of the obligation for banks to include stay recognition clauses in financial contracts as provided for in article 12(2bis) of the Ordinance on Banks and Savings Institutions (FBO). The final rules took effect on 1 April 2017, with a 12 months implementation period for contracts with banks and securities dealers and an 18 months implementation period for contracts with all other counterparties.

By Stefan Kramer / Andreas Josuran (Reference: CapLaw-2017-18)

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)